But in this case the former example clearly does not apply (presumably the fact they are using the term “wiretap” implies it is actually a recording of phone call, which would be absolutely be illegal)
If a random private citizen handed over a recording from someone else’s phone they had tapped, it would be absolutely 100% inadmissible in a US court.
Why would recording made by Spanish police officer be any different? Unless a US court is able to treat a Spanish warrant as “due process”, which seems unlikely to me (but then again IANAL). What if it had been a North Korean not a Spanish official would the same apply? (Spain doesn’t have a 4th Amendment, but has some protections against illegal surveillance I am sure)
Not that, of course, I couldn’t imagine Trump Jnr loudly, obnoxiously conspiring to commit a crime with a Russian banker in the middle of a tapas restaurant (“The food was great at El Grande, so was the service, but I am knocking a star off this review due to the loud American at the next table constantly shouting to his Russian companion about about how great it was that they were going hack Hillary’s emails”)
But in this case it looks like the Spanish authorities had an existing wiretap on the phone calls of the Russians in question (as they are SUPER sketchy!), and the conversations with Trump Jnr were recorded in the process. For the sake of argument (as I am not trying to discuss the Trump case in particular here) lets assume this is what happened.
But why would they have an expectation that US rules of evidence would apply in areas governed by other countries?
They knew full well that US constitutional protections are not binding on foreign governments, but chose to engage in the activity anyways. When you’re in a country that doesn’t need a warrant, or has different standards for warrants, it’s on you to make sure your actions don’t transgress their standards of evidence.
Eh, the Trumps and their associates aren’t all that smart.
And it could be argued that recording Trump speaking to foreign leaders and holding meetings in the Mara Lago dining room (which he has done) are fair game.
Otherwise, you are correct. I can’t wiretap a friend and then turn it over to police.
In a US court the US constitution applies. The evidence presented there must meet the requirements of the US constitution, regardless of where that evidence was produced. You wouldn’t be able to present evidence extracted by torture in a North Korea death camp in a US court, even though it would absolutely be admissible in a North Korean one.
I can see (maybe?) the prosecution arguing that Spanish law isn’t that different from US law in this example, and the wiretap would totally have been legal under US law (with probable cause, etc.). But that seems a massive rabbit hole where a US judge has to rule on status of an entire foreign legal system (“What about the Spanish inquisition!”)
The few federal appellate courts to hear the issue have held that while the fourth amendment applies to Americans overseas, the warrant requirement does not. A search need only be reasonable, and one that complies with local law is typically reasonable.
Of course, but if they refuse would the defense have been able to get the evidence thrown out. Being able to cross-examine witnesses against you is a pretty fundamental part of due process.
What happens in the US for “out of state evidence?” Eg there’s a trial in Hawaii, a piece of evidence is a recording of a conversation the accused had while visiting Alaska. The recording was legal to make under Alaska law but illegal under Hawaiian.
Given that “the Guardia Civil has detained 23 Russian citizens for [insert international crime commited while in Spain]” is the 2010s version of our old reports on the Guardia Civil bringing in anybody for smuggling, it’s quite a likely hypothesis.
The correct answer to any legal question is, “it depends”. Words like “absolutely 100%” or “totally admissible” are fraught with error. I am not ultimately certain of your answer, but I’m confident that either of these statements is inaccurate.
There are really two stages to admitting evidence. The first stage (before trial) determines whether it is admissible. This is when evidence illegally obtained can be challenged and possibly thrown out. In your example, it sounds like the court would determine that it was not illegally obtained under Alaskan law (the term for illegally obtained evidence is usually “the fruit of the poisonous tree”, meaning that any evidence obtained from an illegal search is ‘tainted’ by the illegality. As with anything under the law, there are exceptions; e.g. inevitable discovery). Usually, a court finds that an investigation done according to local (especially American) law provides the due process guaranteed by the Constitution - not a problem.
The 2nd stage to admitting evidence is at trial. Presuming the other side is not stipulating to its admission, evidence usually has to be ‘authenticated’, meaning somebody has to independently testify that it is authentic. This is typically done by the person making the record (who can testify that, yes, I was there when this happened). The theory is that this person is subject to cross-examination, so any duplicity in their statements about the authentic nature of the item can be discerned (note that some items are deemed self-authenticating, because the law presumes that they are authentic. The party challenging the admission has to affirmatively show that they are not what they purport to be - certified government documents are an example).
So, to complete the hypothetical, the recording would likely only be admitted if an Alaskan had flown in to Hawaii to testify, based on personal knowledge, as to how and when it was made.
Not to my knowledge. Sex crimes, however, do (e.g. the standard of relevance is heavily relaxed with regard to evidence of other sexual acts by the defendant, whereas typically in a case you can’t prove that somebody did ‘this’ act by presenting evidence that they did that ‘other’ act).
IANAL lawyer but I am pretty confident about the first one. Could you show a circumstance in any criminal court in any US jurisdiction, where a recording made by an illegal wiretap placed by a private individual on another individual’s personal phone, without their knowledge or permission (where the person who placed the wiretap does not own the phone, and was not party to the conversation) would admissible in court?
The second one is obviously a lot more doubtful (hence the “probably”). But as far as US law goes, saying “there was prior similar case where something like this happened and it was found to be admissible” is as close to “yes it is admissible” as you are going to get without actually taking a case like this to court and seeing what the judge says.
A defendant’s prior statements are generally admissible at trial. Typically, recordings that were made of his conversations would be admissible, even without his express permission (i.e. jail house recordings)
Police can’t rely on illegally obtained evidence to prove a case. This would include wiretaps they illegally place on people’s phones.
Police can’t get around the prohibition against illegal searches by enlisting a private individual to do their work (i.e. police can’t ask the neighbor to enter the home without a warrant and then come out and tell the cops what they saw)
Now, in your quote I’m citing above, you have added some legal conclusions (i.e. ‘illegal wiretap’) that were not originally present (i.e. originally, you only talked about a recording made by one private individual of another private individual), but let’s assume that the eavesdropping was against the law.
So, can a person provide law enforcement evidence that they obtained, even if obtained by illegal means?
Presuming that the police had no part in procuring the evidence, yes they can. You don’t have a 4th amendment right against private individuals invading your privacy. Snitches are often themselves criminals. Police rely on tips all the time.
More to my point, here (warning: PDF) is something I found which goes through some of the permutations of police relying on evidence obtained by civilians. There’s too many twists and turns to fully encapsulate, but suffice it to say that absolute certainty isn’t warranted. However, generally speaking, the 4th amendment won’t suppress evidence found by a private person who is not acting on behalf of, or at the behest of, the state.
(It is ALSO true that this individual might face criminal or civil repercussions for the way that they gathered the evidence).