Recording A Speaker Phone Call. Is it Wiretapping? Can it Be Used as Evidence?
Kadaifi
via telephone with a distant party. The speaker phone in the conference
room is on so all can hear the distant party. The distant party is aware
of the fact that the speaker phone is on. Someone in the conference room
tape records both sides of the conversation. The distant party did not
know the conversation was being recorded.
1. Is the taped conversation considered to be wiretapping under Federal
or state laws. I would guess "Yes".
2. Can the taped conversation it self be used in a civil trial in which
an action against the distant party to obtain damages is being tried? If
(1) is "Yes", I would guess "No"
3. If someone took notes during the conversation, could the summary of
the notes be used in the above mentioned civil trial? I would guess "Yes"
Are any of my guesses correct? (IANAL)
Cy Pres
[Conference call with one remote party, everyone else in a conference
room on speakerphone, and one person in the conference room records
the call.]
>1. Is the taped conversation considered to be wiretapping under Federal
>or state laws. I would guess "Yes".
This question is not easily answerable. The easiest set of
circumstances is that everyone in the conference room and the distant
party are all in the same state, the person recording is a party to
the call, and the state is a one party consent state. Then it isn't.
If they're in different states with different laws, very tricky issues
arise as to what states would have jurisdiction to hear the case, and
if they had jurisdiction, which state's law would be applied.
Also, not all illegal forms of recording are "wiretapping." Recording
the noise in a room with a handheld tape recorder is probably not
"wiretapping."
The better question is whether it's illegal, and if illegal, what
level of criminal and/or civil liability it exposes the person doing
it to. It's entirely possible state law would be more relevant than
federal law, and would prohibit more than federal law does.
>2. Can the taped conversation it self be used in a civil trial in which
>an action against the distant party to obtain damages is being tried? If
>(1) is "Yes", I would guess "No"
That would also depend. If the party recording the call did it
illegally, that person would probably not be able to use it. However,
if the recording ended up in court for some other reason, anyone with
access to it, who hadn't themselves committed any wrongdoing related
to it, would probably be able to use it.
>3. If someone took notes during the conversation, could the summary of
>the notes be used in the above mentioned civil trial? I would guess "Yes"
That also might depend on whether the person taking the notes had done
anything illegal themselves, and whether the notes were to be used by
the wrongdoer or against him.
>Are any of my guesses correct? (IANAL)
Maybe. It depends. You'd need a lot more facts to know. I.e. what
state are the people in the conference room in? What state is the
remote caller in? Does the remote caller have any expectation of
privacy? What are the laws in State A? What are the laws in State B?
Have there been recordings made of similar calls between these parties
in similar situations, such that everyone was aware a recording was
often made? Does the recording device emit a periodic beeping sound,
as some do, putting everyone on notice? What's the lawsuit about
where someone is trying to use the recording? Who's trying to use the
recording? For whose benefit is the recording to be used as advice?
How did whoever is using the recording get it? Those would be just
for starters.
Daniel R.Reitman
Actually, recordings of a telephone call may be usable in state court,
depending on whether the state allows recording with consent of one
party or requires consent of all parties.
Notes are usable only when the original conversation cannot be
testified to, and the witness' memory cannot be refreshed by other
means. Even then, the notes must be contemporary and may only be read
into the record, not presented as an exhitit. And, of course, they
can't be used for hearsay purposes without qualifying an exception.
Daniel Reitman
Mike
> A number of people in a conference room are engaged in a conversation
> via telephone with a distant party. The speaker phone in the conference
> room is on so all can hear the distant party. The distant party is aware
> of the fact that the speaker phone is on. Someone in the conference room
> tape records both sides of the conversation. The distant party did not
> know the conversation was being recorded.
>
> 1. Is the taped conversation considered to be wiretapping under Federal
> or state laws. I would guess "Yes".
I am not a lawyer, either, but..........I believe "wiretapping" means
you are not part of either side of the conversation (but still might be
doing this with the knowledge of one side. However, it's usually done
with NEITHER side knowing.) Also I don't think this is wiretapping
because you're not in physical contact with any of the equipment along
the way (so it's no more wiretapping than me standing next to you at the
mall with a tape recorder.)
> 2. Can the taped conversation it self be used in a civil trial in which
> an action against the distant party to obtain damages is being tried? If
> (1) is "Yes", I would guess "No"
This depends on if it's a single-party state (where only one party to
the conversation needs to agree to the taping) or a dual-party state
(where both need to agree.) And the agreement deals with ANY taping of a
conversation, even if it's in person.
> 3. If someone took notes during the conversation, could the summary of
> the notes be used in the above mentioned civil trial? I would guess "Yes"
Probably "yes."
slide
> A number of people in a conference room are engaged in a conversation
> via telephone with a distant party. The speaker phone in the conference
> room is on so all can hear the distant party. The distant party is aware
> of the fact that the speaker phone is on. Someone in the conference room
> tape records both sides of the conversation. The distant party did not
> know the conversation was being recorded.
>
> 1. Is the taped conversation considered to be wiretapping under Federal
> or state laws. I would guess "Yes".
Here's a good article on the matter. The answer is, as it usual, "It
depends."
http://www.callcorder.com/phone-recording-law-america.htm
>
> 2. Can the taped conversation it self be used in a civil trial in which
> an action against the distant party to obtain damages is being tried? If
> (1) is "Yes", I would guess "No"
Again, it depends on #1 and the determination of the judge as to the
admissibility of the recording. Under certain circumstances, a judge may
not admit a recording which otherwise is legal in the state where it was
recorded. An example may be if the trial is in a state where the
recording isn't legal but the recording was made in a state where it is
>
> 3. If someone took notes during the conversation, could the summary of
> the notes be used in the above mentioned civil trial? I would guess "Yes"
>
Notes taken would have the same weight as testimony because the notes
themselves wouldn't be admitted, but rather the testimony of the one
taking the notes who could refer to them for accuracy's sake. The reason
is you can't swear in or cross examine a note.
Like any testimony, the weight given would depend on the judge or jury's
sense of the truthfulness and accuracy of the testimony.
Barry Gold
Kadaifi <nos...@nospam.org> wrote:
>A number of people in a conference room are engaged in a conversation
>via telephone with a distant party. The speaker phone in the conference
>room is on so all can hear the distant party. The distant party is aware
>of the fact that the speaker phone is on. Someone in the conference room
>tape records both sides of the conversation. The distant party did not
>know the conversation was being recorded.
>
>1. Is the taped conversation considered to be wiretapping under Federal
>or state laws. I would guess "Yes".
No, it is not "wiretapping" under either Federal or state laws. As I
understand it, wiretapping is recording or listening in on a phone
conversation without _either_ party being aware.
This is "recording" a conversation. The rules for that are different
in different states. Some states use "1-party consent" -- any party
to a conversation can record it without informing the other party.
New York is one such state.
Other states require "all-party consent": all parties to the
conversation must consent(*) to the recording. California is one such
state. You can find state-by-state rules at
http://www.rcfp.org/taping/states.html
(*) Continuing the convesation after being informed that it is being
recorded is usually considered consent. One example is the old
standard of recording equipment that generates a "beep" every 15
seconds. Another is the standard, "this call may be monitored or
recorded for quality control purposes" that you hear when calling
nearly any large business's sales or tech support lines.
>2. Can the taped conversation it self be used in a civil trial in which
>an action against the distant party to obtain damages is being tried? If
>(1) is "Yes", I would guess "No"
If both parties are in a "1-party consent" state, the taped
conversation can be used. If the remove party is in an "all-party
consent" state, things can get complicated.
a) If the remote party has no "nexus" with the state where the
recording took place, he would have to be sued in his own state.
The court would almost certainly exclude the recording.
b) If the remote party can be sued in the state where the recording
took place (legal in that state), the remote party may raise the
point that the recording violated the law in his state. The judge
may or may not grant a motion to exclude it. I certainly wouldn't
want to rely on it as a key piece of evidence in my case.
c) The party who made the recording committed a crime _in the remote
state_. I don't know if they would bother trying to get him
extradited, or if his own state would be willing to. Even if not,
if he ever places himself within the jurisdiction of that state, he
can be prosecuted for it.
>3. If someone took notes during the conversation, could the summary of
>the notes be used in the above mentioned civil trial? I would guess "Yes"
I think you are right. Anybody can make notes of a conversation, and
use those notes to refresh his memory of the conversation. He may even
be able to introduce them directly into evidence, depending on the
details of that court's rules of evidence.
This is for discussion purposes only, and is not legal advice. I'm
not a lawyer. If you want legal advice, hire a lawyer.
--
Barry Gold, webmaster:
Alarums & Excursions, Xenofilkia: http://places.to/xeno
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Tim Smith
wrote:
> I think you are right. Anybody can make notes of a conversation, and
> use those notes to refresh his memory of the conversation. He may even
> be able to introduce them directly into evidence, depending on the
> details of that court's rules of evidence.
>
> This is for discussion purposes only, and is not legal advice. I'm
> not a lawyer. If you want legal advice, hire a lawyer.
OK, how about this? In an "all must consent" state, one party records a
phone conversation without consent of the other.
At trial, no attempt is made to introduce the recording into evidence.
However, the party that recorded the conversation wishes to listen to
his recording, to refresh his memory--essentially using it as notes.
Allowed or no?
--
--Tim Smith
mm
wrote:
>
>(*) Continuing the convesation after being informed that it is being
>recorded is usually considered consent. ... Another [example] is the
>standard, "this call may be monitored or
>recorded for quality control purposes" that you hear when calling
>nearly any large business's sales or tech support lines.
This raises an interesting point. If continuing the conversation
after you have been warned that the conversation is being recorded is
consent, what exactly has the party consented to? If the recording
says that the "this call may be recorded for quality control
purposes", doesn't that mean the quality control wrt the employee, not
the caller? The company recording the call wants to know that a
customer service rep was or wasn't rude to the customer, did or didn't
swear at him, for example. Asked him the right questions, gave him
the right answers.
But what if the caller threatens to kill the customer service rep? He
only consented for "quality control purposes", not for purposes of
prosecuting him, when the rep later is murdered. Seems to me, the
recording shouldnt' be admitted in his trial for murder, or for any
other reason related to him. But only used to evaluate etc. the
customer service rep.
What say ye?
Cy Pres
["This call may be monitored for quality control purposes."]
>But what if the caller threatens to kill the customer service rep? He
>only consented for "quality control purposes", not for purposes of
>prosecuting him, when the rep later is murdered. Seems to me, the
>recording shouldnt' be admitted in his trial for murder, or for any
>other reason related to him. But only used to evaluate etc. the
>customer service rep.
I doubt you'd get very far with this. Once you are aware that the
call is being recorded and choose to make death threats or otherwise
commit criminal acts using the medium, these recordings may be used
for any purpose. You have no reasonable expectation of privacy when
uttering death threats on a line you know is being recorded.
Barry Gold
>>(*) Continuing the convesation after being informed that it is being
>>recorded is usually considered consent. ... Another [example] is the
>>standard, "this call may be monitored or
>>recorded for quality control purposes" that you hear when calling
>>nearly any large business's sales or tech support lines.
mm <mm2...@bigfoot.com> wrote:
>This raises an interesting point. If continuing the conversation
>after you have been warned that the conversation is being recorded is
>consent, what exactly has the party consented to?
[call 'recorded for quality control purposes']
>But what if the caller threatens to kill the customer service rep? He
>only consented for "quality control purposes", not for purposes of
>prosecuting him, when the rep later is murdered.
IANAL, but I think it would be admitted. The caller consented to the
recording, and I doubt that a court would find that his consent was
conditioned on the purpose of the recording. This is sort of like the
situation that can arise when the police stop somebody.
Say a cop pulls you over for speeding. He had a legal right to do so
-- probable cause to believe you violated the law. Having pulled you
over, he talks to you and in the process can see into your car. If he
sees a bag of white powder, he would _then_ be justified in arresting
you for possession of cocaine, and seizing the evidence which is in
plain sight. He wouldn't have seen it if he'd just been driving by,
and his seeing it has nothing to do with the purpose of the stop, but
it's still a valid bust and the evidence is admissible.
Or the cop pulls you over because you are driving erratically. He
administers a Field Sobriety Examination. You fail (in his opinion),
so he arrests you. As part of arresting you, he pats you down, and
finds a suspicious lump in your pocket. So now he pulls it out and
lo and behold, a lump of hashish. You're busted: the patdown was
incident to a legal arrest, and even though the drugs have nothing to
do with the original purpose of the search -- to make sure you don't
have a weapon that you could attack the cop with -- it's a valid
search.
This would be true even if you pass the breathalyzer test when he
brings you in and so don't get charged with DUI.
jacket off and finds a concealed revolver.
Barry Gold
>wrote:
>> I think you are right. Anybody can make notes of a conversation, and
>> use those notes to refresh his memory of the conversation.
Tim Smith <reply_i...@mouse-potato.com> wrote:
>OK, how about this? In an "all must consent" state, one party records a
>phone conversation without consent of the other.
>
>At trial, no attempt is made to introduce the recording into evidence.
>However, the party that recorded the conversation wishes to listen to
>his recording, to refresh his memory--essentially using it as notes.
>
>Allowed or no?
Well, you can use any notes you want, probably including recorded
notes, to refresh your memory. So my guess is that it's allowed.
*But*, the other side is allowed to ask how and when you made that
recording that you're using. If you admit that you recorded the call
without permission, you can be prosecuted for it -- and your admission
"can and will be used against you in a court of law".
There are two other possible problems:
1. Because your recording was illegal, the other side may be able to
get a judge to refuse you permission to use it, not because it's
against the rules of evidence, but as a sanction for your illegal
conduct.
2. You would have to check with the court clerk as to whether this
particular judge will allow you to do this. Listening to a recording
is not the same as consulting notes. You can glance at a piece of
paper and take in several sentences in a couple of seconds, then
testify about them. But if you're listening to a recording, you
pretty much have to do it in real time. That means that your
testimony will be slower, and broken up as you listen to a sentence,
then repeat it, etc.
The judge may not have the patience for this. Most judges like to
keep things moving along pretty fast, because they almost always have
more cases than they have time for.
Gordon Burditt
>recorded for quality control purposes" that you hear when calling
>nearly any large business's sales or tech support lines.
I still claim that this wording *grants permission* to the customer
to record the call for the customer's quality control purposes.
I also see issues in "all-party" states when the parties have
different ideas about who is a party to the call. Consider a call
between a governor of New York State and a prostitute, which is
wiretapped by the FBI, and that wiretap is tapped by the NSA, and
that wiretap is tapped by Al-Queda. Al-Queda doesn't know the FBI
is listening, and the FBI and NSA don't know Al-Queda is listening.
The governor and the prostitute think they are the only ones
listening. Assume all call endpoints and taps are in an all-party
state. Is the FBI recording inadmissible because Al-Queda didn't
consent?
slide
>
> This raises an interesting point. If continuing the conversation
> after you have been warned that the conversation is being recorded is
> consent, what exactly has the party consented to? If the recording
> says that the "this call may be recorded for quality control
> purposes", doesn't that mean the quality control wrt the employee, not
> the caller? The company recording the call wants to know that a
> customer service rep was or wasn't rude to the customer, did or didn't
> swear at him, for example. Asked him the right questions, gave him
> the right answers.
>
> But what if the caller threatens to kill the customer service rep? He
> only consented for "quality control purposes", not for purposes of
> prosecuting him, when the rep later is murdered. Seems to me, the
> recording shouldnt' be admitted in his trial for murder, or for any
> other reason related to him. But only used to evaluate etc. the
> customer service rep.
>
In almost any legal discussion, we can come up with silly out of world
examples which stretch things to ludicrous heights. I think your example
of a kill threat is in that category but just for fun, I'll take it on.
In this specific case, the reason stated for the recording was QA of the
call system. However, the statement to that effect did not say that the
recording's use was absolutely limited to QA use. It was for QA but that
doesn't preclude it from being used as a training tool or any other purpose.
Even it were limited to QA and so stated, if the threat were credible
then I can't see any judge ruling that such a recording can't have been
revealed to a policing agency. My work is confidential in the same
nature as a psychiatrist but I'm also bound by the same law which
creates that confidentiality to reveal to a police agency any credible
threat to life or current, past or threat of future child abuse.
Even absent such black letter law, I doubt that any court would disallow
the use of such a recording to forestall violence no matter if the
INTENT of the recording was for QA.
Robert Bonomi
Gordon Burditt <gordon...@burditt.org> wrote:
>
>I also see issues in "all-party" states when the parties have
>different ideas about who is a party to the call. Consider a call
>between a governor of New York State and a prostitute, which is
>wiretapped by the FBI, and that wiretap is tapped by the NSA, and
>that wiretap is tapped by Al-Queda. Al-Queda doesn't know the FBI
>is listening, and the FBI and NSA don't know Al-Queda is listening.
>The governor and the prostitute think they are the only ones
>listening. Assume all call endpoints and taps are in an all-party
>state. Is the FBI recording inadmissible because Al-Queda didn't
>consent?
"1-/all- party consent" refers only to the _participants_ in the conversation.
A passive tap (legal or otherwise), operated by a third party, is not a
'participant' in the communication.
Furthermore, positing that the FBI wiretap is a legal one, it is done on the
basis of a court order -- such orders authorize the interception/recording of
_all_ calls made to/from a specific phone number (or numbers). This is
"necessary" because there is simply no possible way to tell _before_the_fact_,
who may engage in conversation during a particular phone call. 'A' may place
the call, and hold the first part of the conversation, then turn the phone
over to 'B' for the 'substantive' discussion that ensues.
Aside, and I -don't- have a cite handy, but i believe that there have been
cases (at least one, that is) where a putatively 'innocent' third-party has
been caught/charged/convicted based on information gathered from a legal
wiretap that was 'targeted' at different persons. They just had the 'bad
luck' to use a tapped phone in their endeavor.
Barry Gold
[snip]
>I also see issues in "all-party" states when the parties have
>different ideas about who is a party to the call. Consider a call
>between a governor of New York State and a prostitute, which is
>wiretapped by the FBI, and that wiretap is tapped by the NSA, and
>that wiretap is tapped by Al-Queda. Al-Queda doesn't know the FBI
>is listening, and the FBI and NSA don't know Al-Queda is listening.
>The governor and the prostitute think they are the only ones
>listening. Assume all call endpoints and taps are in an all-party
>state. Is the FBI recording inadmissible because Al-Queda didn't
>consent?
The "parties" to a conversation are those who are taking part in it.
In this case, the Governor and the prostitute. That means that if
either of those records it without notifying the other, the person
doing the recording is violating the law (and can be fined or put in
prison), and in most cases the recording won't be admissible.
But in the hypo you stated, the FBI is _not_ a party. They would not
have permission to record the call, even in a "1-party consent" state.
But if the FBI has followed procedure and gone to a judge (possibly
the FISA court) and gotten a warrant, then the wiretap is legal and
the recording can be used in court.
The NSA is in a different position. THey are _not_ supposed to spy on
people inside the US, but conceivably could get a warrant anyway. If
they did, they could then use their recording in court. (But it might
be easier to just use the FBI recording, since they know about it.
ANd besides, I've never heard of the NSA actually _admitting_ that
they know something, as by bringing it up in court.)
As for Al Qaeda, they are illegal, outlaw. They will get very short
shrift if they ever dare to show up in a US court.
Mike
Actually, I don't think it requires consent of others who are RECORDING
the conversation but simply consent of those who are ENGAGED in it.
Example: I rig up a video camera with a motion sensor to record the song
birds outside my window at the feeder. You and your friend come along
and spot the camera. You write down on a paper "hey, look at the camera.
It's probably recording us." Your friend writes down "I don't care. Let
it record us." You then say out loud "yeah, I don't mind it, either."
You both then start talking out loud and it's all recorded on the
camera. I'm pretty sure the recording is legal and I can do anything I
want to with it afterwards, even though I didn't "consent" to you being
recorded. Even if my camera was fed through my TV and then my neighbor
had a camera pointed at my TV and recorded it without asking me, I don't
think it's illegal (as long as the neighbor didn't break into my house
to do so) because *I* am not a party to the conversation.
In your example, Al-Queda wouldn't be recording anything the FBI and NSA
themselves were saying but, at worse, making a recording of their
recording (basically like pointing a camera at their monitor/speakers
that's fed by their camera) and, at best, simply picking up the same
feed as the FBI and NSA (like pointing a camera at the same source that
the FBI and NSA are pointed at.)
Now of course the wiretap by Al-Queda is probably illegal simply because
it's a wiretap, period, but that has nothing to do with who knows and
who doesn't.
IANAL.
Daniel R.Reitman
wrote:
>. . . .
>As for Al Qaeda, they are illegal, outlaw. They will get very short
>shrift if they ever dare to show up in a US court.
Acrually, on this issue, the court is likely to give them serious
consideration.
Daniel Reitman
Don
> in almost any legal discussion, we can come up with silly out of world
> examples which stretch things to ludicrous heights. I think your example
> of a kill threat is in that category but just for fun, I'll take it on.
You probably haven't talked you some of the customer service
representatives, bank employees, and financial advisors that I have
over the years. Personally, I have never made any death threats (knock
on wood), but I can readily understand how some people might be tempted
to do so, especially in these troubled times.
> My work is confidential in the same
> nature as a psychiatrist but I'm also bound by the same law which
> creates that confidentiality to reveal to a police agency any credible
> threat to life or current, past or threat of future child abuse.
In addition to threats of life and child abuse, are lawyers and
psychiatrists required to report plans to commit a major theft or bank
robbery, embezzlement, plans to disable computers nationwide by means
of a virus, drug deals, election fraud, rape, or a Ponzi scheme
involving billions? If "child abuse" rises to the level where
confidentially no longer applies, then I would guess those things
certainly do too.
slide
>
> In addition to threats of life and child abuse, are lawyers and
> psychiatrists required to report plans to commit a major theft or bank
> robbery, embezzlement, plans to disable computers nationwide by means
> of a virus, drug deals, election fraud, rape, or a Ponzi scheme
> involving billions? If "child abuse" rises to the level where
> confidentially no longer applies, then I would guess those things
> certainly do too.
I can't speak to those professions, but nothing I know of demands me
report Ponzi schemes or computer attacks, drug use, etc. If a bank
robbery may result in death or injury, then I need to report that. I
have no idea how child abuse can 'rise' to a level not demanding a
report. If so, then it's not abuse.
mm
wrote:
>mm wrote:
>> Seems to me, the
>> recording shouldnt' be admitted in his trial for murder, or for any
>> other reason related to him. But only used to evaluate etc. the
>> customer service rep.
>
>In almost any legal discussion, we can come up with silly out of world
>examples which stretch things to ludicrous heights. I think your example
>of a kill threat is in that category but just for fun, I'll take it on.
Did you not notice that later in the paragraph I also included "the
recording shouldn't be admitted .... for any other reason related to
him."
A murder threat followed by a murder is just one example. But given
all the people in the news who are murdered because they are coworkers
(the post office and other places) or co-students (Virginia Tech,
Columbine, etc.) or because they are learning English when the
murderer couldn't (Friday in Binghamton) or other tangential
relationships, and the 100's of millions of customer service calls
made every year in the US alone, I don't think even the example of
murder is ludicrouse.
>
>Even absent such black letter law, I doubt that any court would disallow
>the use of such a recording to forestall violence no matter if the
>INTENT of the recording was for QA.
Maybe you're right. Thanks. I'll be careful, and I'll call back that
one woman and retract what I said.
Don
> I can't speak to those professions, but nothing I know of demands me
> report Ponzi schemes or computer attacks, drug use, etc. If a bank
> robbery may result in death or injury, then I need to report that. I
> have no idea how child abuse can 'rise' to a level not demanding a
> report. If so, then it's not abuse.
No, what I meant was the reverse: Child abuse is serious, but some of
those other things mentioned are equally serious if not more so.
Usually, child abuse involves injury to one person. Ponzi schemes, bank
robbery, drug deals (not drug use), etc., can involve injury to many
people, so it seems there is some inconsistency.
Barry Gold
>> I can't speak to those professions, but nothing I know of demands me
>> report Ponzi schemes or computer attacks, drug use, etc. If a bank
>> robbery may result in death or injury, then I need to report that. I
>> have no idea how child abuse can 'rise' to a level not demanding a
>> report. If so, then it's not abuse.
Don <dwz...@telus.net> wrote:
>No, what I meant was the reverse: Child abuse is serious, but some of
>those other things mentioned are equally serious if not more so.
>Usually, child abuse involves injury to one person. Ponzi schemes, bank
>robbery, drug deals (not drug use), etc., can involve injury to many
>people, so it seems there is some inconsistency.
A couple of thoughts on this subject:
1. In balancing the "seriousness" of a crime vs. the privilege of
lawyer-client (or doctor-patient) confidentiality, the law does not
calculate the _total_ damage, but rather the seriousness of the damage
to any one individual.
2. _Legally_, serious bodily harm is "more serious" than property
loss, regardless of the respectie monetary value of the property vs.
bodily harm damages. [Most of the time... there are exceptions.]
3. The law as currently written _specifically_ provides an exception
for imminent serious bodily harm to a person. If you tell your lawyer
or therapist, "I'm going to go out and break both of Joe's legs," then
the lawyer/therapist is allowed to report this to the police so they
can protect Joe. (In some states, the lawyer/therapist is _required_
to report.) If you tell your lawyer, "I'm running a Ponzi scheme,"
that exception doesn't apply.
In a sense you may take #1 & #2 above as "reasons" for #3, but in
practice the law says what it says and "common sense" has little
or no bearing on the law.
Don
>
> 3. The law as currently written _specifically_ provides an exception
> for imminent serious bodily harm to a person. If you tell your lawyer
> or therapist, "I'm going to go out and break both of Joe's legs," then
> the lawyer/therapist is allowed to report this to the police so they
> can protect Joe. (In some states, the lawyer/therapist is _required_
> to report.) If you tell your lawyer, "I'm running a Ponzi scheme,"
> that exception doesn't apply.
Yes, I guess that makes sense if bodily harm or injury is the
determining factor. In that case, I would imagine that rape or intent
to rape should be added to the list. Selling drugs to minors, or adults
for that matter, also produces bodily harm. Moreover, if the executive
of a drug company told his lawyer that he really did know XXX was
unsafe before putting it on the market or intending to put it on the
market, then that lawyer should be duty bound to contact the police. If
a client said to his lawyer, "Hell, I am going out and get drunk and
then drive over to my ex wife's place and give her a piece of my mind,"
I presume the lawyer should call the police, because drunk drivers
certainly can cause injury. But I wonder how many lawyers would do it.
Or psychiatrists.
Cy Pres
wrote:
>3. The law as currently written _specifically_ provides an exception
>for imminent serious bodily harm to a person. If you tell your lawyer
>or therapist, "I'm going to go out and break both of Joe's legs," then
>the lawyer/therapist is allowed to report this to the police so they
>can protect Joe. (In some states, the lawyer/therapist is _required_
>to report.) If you tell your lawyer, "I'm running a Ponzi scheme,"
>that exception doesn't apply.
Actually, it might, depending on what the circumstances were.
For example, the Model Rules of Professional Conduct allow, under RPC
1.6:
---
(b) A lawyer may reveal information relating to the representation of
a client to the extent the lawyer reasonably believes necessary:
[. . .]
(2) to prevent the client from committing a crime or fraud that
is reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the
client has used or is using the lawyer's services;
---
If the lawyer helped set up the corporate structure for the fraud,
innocently or not, or otherwise was already representing the financial
entities in question, that lawyer would probably be permitted (or
required where the rule is different) to disclose the situation.
A lawyer would not be permitted to disclose in a situation where a
Ponzi scammer approached the lawyer for criminal defense or other
defensive purposes, and was winding down the fraudulent operation,
dissolving the scam, declaring bankruptcy, and otherwise ceasing
fraudulent activities.
Mike
> 3. The law as currently written _specifically_ provides an exception
> for imminent serious bodily harm to a person. If you tell your lawyer
> or therapist, "I'm going to go out and break both of Joe's legs," then
> the lawyer/therapist is allowed to report this to the police so they
> can protect Joe. (In some states, the lawyer/therapist is _required_
> to report.) If you tell your lawyer, "I'm running a Ponzi scheme,"
> that exception doesn't apply.
I believe the law says the lawyer can break confidence to prevent harm
to someone but not to report harm already done. I believe it also says
that the lawyer can break confidence in regards to FUTURE crime. So it
would seem to me that "I am going to break Joe's legs" would fall under
the "prevent future crime" (as well as the "prevent bodily harm") but
the "I am running a ponzi scheme" would not (but "I am going to start a
ponzi scheme" would also fall under "prevent future crime" and thus
allow the breaking of confidence.) Now it would seem to me that if
someone said "I set fire to a building" the lawyer could break
confidence if it would prevent someone from running into the building
and getting burned ("prevent bodily harm") but not otherwise, since the
crime was already committed.
Cy Pres
>If
>a client said to his lawyer, "Hell, I am going out and get drunk and
>then drive over to my ex wife's place and give her a piece of my mind,"
>I presume the lawyer should call the police, because drunk drivers
>certainly can cause injury. But I wonder how many lawyers would do it.
>Or psychiatrists.
I don't believe the lawyer or doctor would be required to report this
in either case. MRPC 1.6 states a lawyer may disclose confidential
information "(1) to prevent reasonably certain death or substantial
bodily harm[.]" While drunk drivers might cause injury or death, it
is not "reasonably certain." In fact, the average drunk driver
probably will not harm anyone in a single incident of DUI.
mm
wrote:
>Barry Gold wrote:
>> 3. The law as currently written _specifically_ provides an exception
>> for imminent serious bodily harm to a person. If you tell your lawyer
>> or therapist, "I'm going to go out and break both of Joe's legs," then
>> the lawyer/therapist is allowed to report this to the police so they
>> can protect Joe. (In some states, the lawyer/therapist is _required_
>> to report.) If you tell your lawyer, "I'm running a Ponzi scheme,"
>> that exception doesn't apply.
>
>I believe the law says the lawyer can break confidence to prevent harm
>to someone but not to report harm already done. I believe it also says
- - - - - - - - - - - - - - - - - - - - - - - -
>that the lawyer can break confidence in regards to FUTURE crime. So it
>would seem to me that "I am going to break Joe's legs" would fall under
>the "prevent future crime" (as well as the "prevent bodily harm") but
>the "I am running a ponzi scheme" would not (but "I am going to start a
>ponzi scheme" would also fall under "prevent future crime" and thus
Well, assuming what you say at the start of the paragraph is correct,
and IANAL, isn't each instance of accepting money with no plan to
return it a separate crime and aren't any instances to come of
accepting more money from the same customers, or other money from new
customers, "future crime".
>allow the breaking of confidence.) Now it would seem to me that if
>someone said "I set fire to a building" the lawyer could break
>confidence if it would prevent someone from running into the building
>and getting burned ("prevent bodily harm") but not otherwise, since the
>crime was already committed.
Not the best example. We are to think he can't see the fire or smoke
for himself and won't know there's a fire until he is told by the
lawyer that his client set fire to the building? Maybe the poisonous
gases created by the fire can't be seen. Maybe change the story to
someone who opened or delivered a biologic pathogen or radioactive
substance, where the danger is invisible.
But in all these cases, isn't someone going to go into the building
eventually?
When you say "break confidence", you're not talking about saying "Joe
Fletcher told me he released a biologic pathogen" are you? Or "My
client said that he did," or "Someone told me he did".
Are you referring to a lawyer (with such a client, one unknown to
others( saying "I wonder if there might be poisonous gases released by
the fire, I wonder if there might be biologic pathogens set loose in a
lab that normally has them sealed. I wonder if there might be
radioactivity released there." Why would you say that? the lab
manager asks. "I saw a movie like that once" the lawyer replies, and
"When I arrived here 10 minutes ago, I heard someone saying, "They're
all going to die. I showed them". Is that breaking confidence? When
you don't put anyone on notice that a client told you and you blame on
a fictional person, who you can describe as 5'4", blond, and with a
red and green windbreaker. If they ever find someone like that,
you can say, "No that's not the one."
Which is better, to let people go into a building with an invisible
fatal danger, or if necessary to stimulate protective measures, to lie
about who said something.
Seth
<miatt...@gmail.com> wrote:
>This issue does not really analogize to the TV drama situation of
>evidence gathered by police in violation of the 4th Amendment. In
>such cases, the remedy is suppression because the US Supreme Court has
>ruled, in essence, no other remedy would be sufficient to deter police
>misconduct, and a constitutional right has been violated. However,
>that remedial theory has its detractors (including current USSC
>Justices), who believe that outright suppression is too harsh to be
>applied across the board -- the detractors would impose a damage
>remedy and/or a sliding scale test (examining the egregiousness of the
>police misconduct) to determine whether suppression is really
>appropriate for a given violation.
It's sometimes too harsh (on society) and sometimes not harsh enough
(on the police). In particular, suppression provides no compensation
to an innocent person whose rights are violated.
Seth
Seth
slide <dryad...@xxyahxxoo.com> wrote:
>In almost any legal discussion, we can come up with silly out of world
>examples which stretch things to ludicrous heights. I think your example
>of a kill threat is in that category but just for fun, I'll take it on.
Try reading, say, the customers_suck community on livejournal. It may
be a silly example, but it's one that happens a lot in the real world.
Most such threats are ignored as pure bluster. Some are reported to
the police who act on them.
Seth
Seth
> c) The party who made the recording committed a crime _in the remote
> state_. I don't know if they would bother trying to get him
> extradited, or if his own state would be willing to. Even if not,
> if he ever places himself within the jurisdiction of that state, he
> can be prosecuted for it.
I disagree. If you do something in California that violates Minnesota
law (or would do so if it happened in Minnesota), that doesn't mean
Minnesota wants to arrest you.
Hawaii doesn't arrest tourists from Alaska who have carried guns
around Alaska without permits (which is quite legal in Alaska, and
illegal in Hawaii).
Seth
Seth
Tim Smith <reply_i...@mouse-potato.com> wrote:
>OK, how about this? In an "all must consent" state, one party records a
>phone conversation without consent of the other.
>
>At trial, no attempt is made to introduce the recording into evidence.
>However, the party that recorded the conversation wishes to listen to
>his recording, to refresh his memory--essentially using it as notes.
>
>Allowed or no?
You mean while on the stand? Probably not allowed. Refreshing his
memory early in the morning before going to the courthouse? Certainly
allowed, and unlikely to be noticed.
Making a transcript and referring to those notes? Interesting issue
(if asked about the source, he would have to plead the Fifth).
Seth
John F. Carr
>
>[Suppression is] sometimes too harsh (on society) and sometimes not harsh
>enough (on the police). In particular, suppression provides no compensation
>to an innocent person whose rights are violated.
A recent, relevant case out of Massachusetts is described here:
The state supreme court said that frisking people without specific
reason to fear for safety is unconstitutional. The District Attorney
for Suffolk County said he wanted Boston officers to ignore the ruling
and he would back them up.
--
John Carr (j...@mit.edu)
slide
In my work, there has to be a 'credible' threat - not just a threat. It
is a judgment call. Informally we've been told to report anything
related to child abuse due to politics. That is, disregard creditability
in this area, but not in the others.
I've had one credible death threat. Instead of calling the police which
would not have, IMO, prevented the crime, we diffused the situation.
There was no crime committed.
Stuart A. Bronstein
> Barry Gold <bg...@nyx.net> wrote:
>
>> c) The party who made the recording committed a crime _in the
>> remote state_. I don't know if they would bother trying to get
>> him extradited, or if his own state would be willing to. Even
>> if not, if he ever places himself within the jurisdiction of
>> that state, he can be prosecuted for it.
>
> I disagree. If you do something in California that violates
> Minnesota law (or would do so if it happened in Minnesota), that
> doesn't mean Minnesota wants to arrest you.
If you perform an act in one state that you know will have the effect
of a criminal violation in another state, you can be held liable in the
other state.
For example it is legal to fire a gun in California in some
circumstances. Let's say you fire a gun in California near the border,
and kill someone in Nevada. Nevada can certainly arrest and convict
you for murder, manslaughter or whatever.
> Hawaii doesn't arrest tourists from Alaska who have carried guns
> around Alaska without permits (which is quite legal in Alaska, and
> illegal in Hawaii).
Let's say someone in Hawaii sets up a bomb attached to a telephone.
You, in Alaska, had nothing to do with it. But you find out about it
and you phone the Hawaii number intending to explode the bomb. Making
a phone call in Alaska is certainly legal. But if the bomb explodes,
Hawaii can extradite you and convict you.
Stu
Mike
But carrying the gun in Alaska doesn't directly affect anyone in Hawaii
in any way. But I believe that if I stood in NY and dropped trou and
someone right across the state line in NJ saw me, then NJ could,
possibly, arrest me for indecent exposure (assuming I ever stepped
across the line into NJ at any time in the future.)
Cy Pres
>The state supreme court said that frisking people without specific
>reason to fear for safety is unconstitutional. The District Attorney
>for Suffolk County said he wanted Boston officers to ignore the ruling
>and he would back them up.
That's a very good decision by the District Attorney. It makes it
much easier for a civil plaintiff to prove that the District Attorney
is entirely aware that certain actions are illegal, but yet he is
openly and publicly calling for lawbreaking, in the hopes that the law
is broken. It certainly makes establishing liability much more easy.
It also probably violates legal ethics rules and could open him to bar
discipline.
Many rinky-dink prosecutors would make a similar decision in such a
case. Not many of them would be stupid enough to admit it in public.
Daniel R.Reitman
Hm. Does Massachusetts have a little-1983 statute?
Daniel Reitman
Barry Gold
John F. Carr <j...@mit.edu> wrote:
>A recent, relevant case out of Massachusetts is described here:
>
><http://www.boston.com/news/local/massachusetts/articles/2009/04/03/sjc_puts_limit_on_pat_down_searches/>
>
>The state supreme court said that frisking people without specific
>reason to fear for safety is unconstitutional. The District Attorney
>for Suffolk County said he wanted Boston officers to ignore the ruling
>and he would back them up.
Fascinating.
If the police follow Conley's suggestion (instead of doing as Chief
Romero said) I imagine the cour will issue a specific injunction. Any
cop who fails to comply could find himself cited for COntempt of Court
and fined a few $1000 or sent to pokey for a few days. I don't know
MA law. CA law limits punitive contempt to 3 days.
I don't think the court can directly order COnley to recant: he has a
1st amendment right to speak. But if he continues to bring cases to
court based on illegal searches, the court could apply Rule 11
sanctions. SOme possible sanctions:
a) requiring the city to pay for the time suspects spend in jail
awaiting bail and/or trial.
b) if the suspects hire a private lawyer, the city would have to pay
his fees. And once word gets out that this is happening, almost
everybody would.
c) lost wages while in jail.
Cy Pres
<drei...@spiritone.com> wrote:
>Hm. Does Massachusetts have a little-1983 statute?
I'm not sure they'd need one. The federal statute, 42 USC § 1983,
would be considerably more easy to invoke in a case like this. One of
the most difficult things to overcome in your typical 1983 case is the
defense of qualified immunity. In fact, the plaintiff has to prove
that the defendant violated clearly established law of which a
reasonable person would be aware.
Well, you can't get more clearly established than a ruling directly on
point from the state Supreme Court. And further, anyone who tries to
claim the District Attorney's incitement to illegal actions as a
defense would also be not merely constructively aware, but actually
aware, that they'd been incited to violate that specific Supreme Court
ruling, which would prove that they were, in fact, actually aware of
it. This is a much higher showing than what is actually required,
i.e. that a reasonable person would be aware of it.
It is also probably outside what prosecutors are immune for, i.e.
prosecutorial discretion. Giving of legal "advice" to the police is
not within prosecutorial discretion. It is one of those breaches in
the general pattern of absolute prosecutorial immunity. It is also
probably egregious enough to defeat the prosecutor's remaining
qualified immunity on the basis that he is clearly setting policy for
the district, with the specific intent that clearly established laws
be broken and the rights of the citizens of the district are ignored
by the police.
He could have just cost the law enforcement establishment millions or
tens of millions of dollars with his stupid utterance. Depending on
how judges view ordering that officers willfully break the law,
basically disregarding the rule of law and ignoring the state's
supreme judicial authority, 1983 suits may be the least of his
problems. Local courts may retaliate by being very open to claims of
illegal search, especially when this idiot DA is involved, and when
they find illegal searches, they may use particularly harsh language,
well crafted for use in subsequent civil rights suits. Unlike the
idiot DA, they are unlikely to say they are doing this publicly.
This complete clown has basically declared a turf war with the
judiciary. I wouldn't expect him to win it. I would suspect he's
going to find litigating any of his cases more difficult starting
pretty much immediately.
John F. Carr
Cy Pres <c.p...@yahoo.com> wrote:
>On Fri, 17 Apr 2009 18:30:07 -0700, "Daniel R.Reitman"
><drei...@spiritone.com> wrote:
>
>>><http://www.boston.com/news/local/massachusetts/articles/2009/04/03/sjc_puts_limit_on_pat_down_searches/>
>
>>Hm. Does Massachusetts have a little-1983 statute?
>
>I'm not sure they'd need one. The federal statute, 42 USC § 1983,
>would be considerably more easy to invoke in a case like this. One of
>the most difficult things to overcome in your typical 1983 case is the
>defense of qualified immunity. In fact, the plaintiff has to prove
>that the defendant violated clearly established law of which a
>reasonable person would be aware.
I think this is one of the cases where state constitutional law
is a little more restrictive than federal law so 1983 would not
help. The state civil rights law is incomprehensible to me.
Because it applies to non-state actors as well as police courts
have had to figure out what a "right" is with respect to a private
party. The typical application of the law is, somebody yells a
racial slur during a fight, the attorney general calls the fight
a racially motivated hate crime, and the AG obtains an injunction
ordering the defendant not to repeat the civil rights violation.
But it also covers situations that look to me like ordinary
breach of contract claims.
--
John Carr (j...@mit.edu)
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>If you perform an act in one state that you know will have the effect
>of a criminal violation in another state, you can be held liable in the
>other state.
Would it depend on the act? For instance, some states outlaw resale
of tickets for too high a price (or at least used to). I've never
heard of someone prosecuted for such a sale where it took place in a
state where it was legal, even though the event was in a state where
it wasn't.
Seth