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Surreptitious Recording of the Police:

Apropos the story about secret videotaping of the police in Massachusetts, check out this incident:

A teenage suspect who secretly recorded his interrogation on an MP3 player has landed a veteran detective in the middle of perjury charges, authorities said Thursday.

Unaware of the recording, Detective Christopher Perino testified in April that the suspect "wasn't questioned" about a shooting in the Bronx, a criminal complaint said. But then the defense confronted the detective with a transcript it said proved he had spent more than an hour unsuccessfully trying to persuade Erik Crespo to confess — at times with vulgar tactics....

Perino, 42, was arraigned Thursday on 12 counts of first-degree perjury ....

Perino had arrested Crespo on New Year's Eve 2005 while investigating the shooting of a man in an elevator. While in an interrogation room at a station house, Crespo, then 17, stealthily pressed the record button on the MP3 player, a Christmas gift, DeMarco said....

[After the disclosure, p]rosecutors then offered Crespo, who had faced as many as 25 years if convicted, seven years if he pleaded guilty to a weapons charge. He accepted.

Thanks to Wade Glover and Prof. Arnold Lowey for the pointer.

UPDATE: For a transcript of portions of the recording, see this Village Voice piece.

Anderson (mail):
Thank god that the only time a police officer ever lied on the stand, an MP3 player was there to catch it.

OTOH, did police officers ever lie before this new technology was developed? I blame progress!
12.12.2007 2:49pm
David Chesler (mail) (www):
I thought those "gotcha" surprises only worked in movies, that in real life both sides had to disclose everything ahead of time. Now I'm confused.
12.12.2007 2:52pm
Armen (mail) (www):
The prosecution can't surprise you, but no such requirement for the defense.
12.12.2007 2:53pm
Carolina:
David,

You are right as to civil cases. Generally, in criminal cases, the defense can still use surprise witnesses/evidence.
12.12.2007 3:06pm
ProctorOfAdmiralty:
I was under the impression that it was illegal to record someone without their consent? Not knowing much about crimlaw, is there something that would make this permissible? I'm not familiar w/ any FRE that would allow this in . . .
Laszlo
12.12.2007 3:08pm
louisvillelawyer (mail):
impeachment?
12.12.2007 3:12pm
Anderson (mail):
I'm not familiar w/ any FRE that would allow this in . . .

How about "relevant evidence is admissible"?

In-person taping is, IIRC, largely governed by state law, not federal. But, if you tape someone over the phone, hello Commerce Clause.
12.12.2007 3:13pm
louisvillelawyer (mail):
also, could be that the detective told the kid the conversation was being recorded. :) to the detective's surprise, it was!
12.12.2007 3:14pm
Fub:
Armen wrote at 12.12.2007 2:53pm:
The prosecution can't surprise you, but no such requirement for the defense.
Depends upon the state. California's discovery statutes do not permit defense to surprise prosecution. So defense "surprise" evidence about crooked cops is often held back for use as rebuttal evidence should the necessity arise.
12.12.2007 3:15pm
ProctorOfAdmiralty:
I guess I was thinking of something more specific than relevance under the FRE...shows my lack of crimlaw knowledge.
L.
12.12.2007 3:18pm
KWA:
I actually believe that the tape would not be admissible in the defendant's trial. I understood 608(b) if the FRE to prohibit proving prior bad acts with extrinsic evidence. If the police officer denied making the statement on cross, the defense had to stick with that answer.
12.12.2007 3:31pm
Fub:
Side note. If you read TFA linked in Prof. Volokh's entry, it appears that the recording was introduced as rebuttal evidence, after defense cross examined the detective.

In particular, this line:
"I couldn't believe my ears," said the lawyer, who decided to keep the recording under wraps until he cross-examined Perino at the trial.
12.12.2007 3:32pm
KWA:
*"of the FRE" that is
12.12.2007 3:32pm
Philistine (mail):

I guess I was thinking of something more specific than relevance under the FRE...shows my lack of crimlaw knowledge.
L.



This is actually covered by a Federal law--which disallows introduction into evidence of any intercepted oral (or wire) communication -- whether in Federal or State Court:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.


18 USC Sec. 2515

"Interception" by a participant in a conversation is permissible (not a "violation of this subchapter").
12.12.2007 3:33pm
Adam J:
Armen - That might be true in some states, but not over here in NY. Here trial by ambush can be practiced by both sides, the only real limitation on that I know of is Rosario, which requires prior statements of a witness be turned over to defense. Of course, the prosecutors solution to that problem is to not take notes of interviews it has with witnesses.
12.12.2007 3:41pm
Cullen (mail):
In Virginia, in state criminal cases, either side can, and does, surprise the other. Usually, it's the prosecution surprising the defense because (i) the defense usually has less evidence, surprising or otherwise, and (ii) Virginia provides for extremely limited pre-trial discovery in criminal cases.
12.12.2007 3:45pm
r78:
Was 2005 before or after Scalia ordained the era of New Professionalism of police officers?
12.12.2007 3:59pm
hattio1:
In Alaska we have liberal and broad pre-trial discovery from the prosecutor...and it is routinely flouted. That may be that the only sanction allowable (except in extreme cases which the judge never finds applicable) is a continuation. Those who think we would be better off without the exclusionary rule for 4th Am violations should consider those situations and how routinely they are ignored. BTW, in two years I think I've only HEARD of a couple of cases where new discovery was not handed on the eve of, or during, trial. It's happened in every case I've tried.
12.12.2007 4:12pm
Westie:
KWA,
You're thinking character for truthfulness. This was direct proof of a lie. Different situation.
12.12.2007 4:21pm
PLR:
Good lawyering.

Unfortunately, the ABA Journal already awarded the Lawyer of the Year award to Gonzo.
12.12.2007 4:35pm
Mark Eckenwiler:
"Interception" by a participant in a conversation is permissible (not a "violation of this subchapter").

This is not true as a blanket rule even under federal law standing alone. If the recording party is acting "under color of law" -- e.g., an undercover cop or informant worknig with the police -- then his or her consent is indeed conclusive under 18 USC 2511(2)(c). However, a person "not acting under color of law" may be in violation of the statute if he/she intercepts the communication for a criminal or tortious purpose. See sec. 2511(2)(d).
12.12.2007 4:41pm
Armen (mail) (www):
Fub and Adam, thanks for the clarification. I was in my "My Cousin Vinny" mode (Marisa Tomei: "It's called disclosure, dickhead").

To add to Westie, this was a prior inconsistent statement, so it's admissible as a hearsay exception/exemption and for impeachment purposes. So it can be used to prove that a) he questioned the defendant about the shooting and b) he lied about it.
12.12.2007 5:00pm
Edward A. Hoffman (mail):
Armen wrote:
To add to Westie, this was a prior inconsistent statement, so it's admissible as a hearsay exception/exemption and for impeachment purposes. So it can be used to prove that a) he questioned the defendant about the shooting and b) he lied about it.
Not quite. The defendant could testify that this is what happened, and his testimony would be admissible despite being hearsay for the reasons you state. That would not make the recording itself admissible if there is a statute that says it can't be used.
12.12.2007 5:16pm
Freddy Hill:

I was under the impression that it was illegal to record someone without their consent?


That's interesting... how would you ask for consent from a cop whose coercive power guarantees that consent will not be granted, but instead that the recording device will be confiscated?

Instead of the marriage ammendment and a few other stupid constitutional proposals out there, I'd suggest an ammendment to the effect that any citizen has the right to record the words and visual interactions of any representative of the state, at any time, for no reason whatsoever. It rings like a 21st century complement to the 2nd ammendment, doesn't it?

And I would encourage the auto and electronics industry to develop devices that continuously record our actions along with those of people that interact with us, in our cars and in our persons. Black boxes to protect you against the state, if you will. If a cop believes that (s)he is on candid camera all the time, (s)he will be a lot more respectful of our rights.
12.12.2007 5:36pm
edhesq (mail):
I didn't think the Detective was so bad. Obviously, the interview was not used against the defendant in court, or the detective wouldn't have denied it. So, how was the accused harmed? If anybody went back on the Det.'s offer of leniency, wouldn't it be the DA who brought the charge?

I understand it's perjury, but not sure how the detective "wronged" the accused. Confused.
12.12.2007 5:53pm
FRE:
Officer's statement comes in for impeachment under FRE 613 and the extrinsic evidence (the recording) comes in under 613(b). Surprise tactics are allowed under 613(a).

The statement might also come in for the truth of the matter asserted under 801(d)(2)(d) assuming that the police interrogation was within the officer's scope of employment.
12.12.2007 6:03pm
Oren:

I didn't think the Detective was so bad. Obviously, the interview was not used against the defendant in court, or the detective wouldn't have denied it. So, how was the accused harmed? If anybody went back on the Det.'s offer of leniency, wouldn't it be the DA who brought the charge?


The courts have long held that, in addition to the inadmissibility therein, an attempt by police officers to violate Miranda rights constitutes a deprivation of Constitutional rights in and of itself. See Cooper

(sorry for the link to a random site, couldn't find it on FindLaw and Lexis ain't free).
12.12.2007 7:11pm
JMHawkins (mail):
Does anyone have any idea why the Detective lied about this? Was it because he'd violated Miranda rights and was worried it would destroy the case?
12.12.2007 9:47pm
trey (mail):
does anyone have anymore background on the case? is the defendant actually getting away with attempted murder?
12.13.2007 2:12am