Lawyer dopers: can this be done?

We all know you can’t use illegally obtained evidence against someone (to convict someone). But what about the opposite.
Suppose I’m accused of murder. I didn’t do it but I have a pretty good idea who did. I illegally tap his phone and catch him admitting he commited the crime to a buddy. Can I use this tape to clear myself? Emphasis is on clearing me, not convicting him.

IANAL, but since nobody else is answering…

As I understand it, only official representatives of government authority are constrained by legality in obtaining evidence. Evidence obtained by you may be used in your defense (although there is no guarantee it will be accepted: you could have faked the tape). It would at least add to reasonable doubt by offering another theory of the crime.

You might still be liable for whatever laws you broke in obtaining the evidence - prosecution for tapping the phone, e.g. - although it’s unlikely IRL that you would be tried for clearing yourself of murder.

If you (as a private citizen) obtained the evidence, not only is it almost guaranteed that it could be used to clear your name, but it is highly likely that it could be used to convict the real murderer.

In Texas, it appears that you could use it in your favor.

But, if it was obtained in violation of any law in Texas, it would not be admissible against the real criminal.

A search or seizure conducted wholly by a private citizen, not acting in any way as an agent of the government, is not a “search or seizure” within the meaning of the Fourth Amendment. SCOTUS ruled in a 1921 case that private papers stolen from a safe that was blown open and a desk that was forced open could be used in a criminal prosecution, even though illegally obtained (although the victim of thefts had a private right of action against the thieves).

Robb is right, but keep in mind, it is likely that the laws and constitutional provisions that were discussing here specifically prohibit state action (action by the gov. or cops, etc.). Just because state action is unconstitutional does not mean that similar action by a private citizen is illegal. If such private action is not illegal, the evidence may very well be admissible–even in Texas.

I thought it was illegal for a private citizen to tape a phone conversation without the other person’s consent?

Actually I hadn’t considered the fact that I am not a law officer and as such am bound to “follow” the law.

So, what if a cop friend did the illegal taping and recorded the real murderer confessing. Can I still use it as evidence to “free” myself. Convicting the real guy is irrelevant to me, and obviously the tape couldn’t be used against him.

PS> I am NOT involved in any case. I just had a discussion once with a lawyer friend about this scenario and he felt I couldn’t use the tape.

The main problem is the admissability of the tape. It is hearsay- the legal meaning, & moreover, someone has to authenticate the tape. Lastly, in Cal ,section 633.5 of the Penal code allows secret taping relating to the crimes of extortion,kidnapping,bribery,any violent felony, & solicitation to commit a crime.

i guess ken starr didn’t take that into consideration when linda tripp taped her phone conversations with monica lewinsky.

would this set a legal precedence?

Wiretap laws vary by state. According to Can We Tape?, the states of California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington require the consent of both parties; the rest do not.

As to the Tripp situation: Tripp was granted immunity from Federal prosecution for her taping of the Lewinsky conversations by Ken Starr. Maryland later (May 2000) dropped its prosecution of her for violating state laws.

PP-Check out the Cal PC I cited above.(633.5) Taping of callsw/o consent is legal under those guidelines. Can’t speak about other states. Now I’ll look at your site-I should have done it before this post.

PP- the site was WRONG about Cal-it omitted sec 633.5 -I wonder how many other “exceptions” were missed. You know, the old “exceptions swallow up the rule concept.”

I’m not going to address the rules of evidence, but on a constitutional basis, the evidence would certainly be admissible. The SC has made it quite clear that to challenge evidence, you must have standing. An extreme example of this is one case where the IRS was investigating some people for doing shady business and hiding revenue in an offshore bank. IRS agents stole the briefcase of one of the bank officers and photocopied the documents within. They then used these documents to prosecute the accused tax-dodgers. The SC upheld this. The bank officer’s rights were violated, so he could have challenged the evidence had he been brought to trial. But his clients’ rights were not violated, so they did not have standing to challenge the evidence.

Your example is almost an exact copy: Murderer’s rights are violated, but the tape is used in the trial of You, not Murderer. As others have mentioned, the fact that you’re not a govt. law enforcement agent means that while Murderer will technically have a civil suit against you, the tape can probably be used against him as well.

Well, you could subpoena the confessor; ask him if he committed the crime; and (if he denies it) use the tape to impeach his testimony - no?

Yes, the recording was illegal. But nevertheless, it was done by a private citizen on her own initiative.

However, if Ken Starr had actually ordered or requested Linda Tripp to make an illegal phone taping, THEN the evidence would be inadmissible since Linda Tripp would be acting as an Agent of the Government, carrying out the orders of a government official working in his official capacity as a prosecuter.

No, the precedence was already set long before.

If I broke into your house with a video camera in my hand, searching through your bedroom and find a bag of marijuana, I can take that video to the police.

Then the police could look at the video, say “thank you”, arrest ME for breaking and entering, and then get a Warrant to arrest YOU for possession of marijuana.

As long as I’m doing this on my own, and not as an Agent Of The Government, the evidence can be used against you.

lucwarm-you could subpoena the wrongdoer, but I have a feeling he would invoke his 5th amendment right against self incrimination, & refuse to speak. He could do this in any legal proceeding-civil or criminal.

In that case, it seems to me that the wrongdoer would be deemed “unavailable” and the tape could come in as a statement against penal interest, at least under the federal rules. You’d still have to demonstrate corroborating circumstances suggesting the statement was trustworthy. I imagine that having a tape-recording of the statement would help on that point.

Interestingly, the federal rules seem to address the very issue you raise:

Correct-I recently passed the Cal bar - statement against interest & unavailable declarant. Interestingly, it would also allow the trier of fact to compare the voice on the tape to the voice of the guy invoking the 5th Amendment

There seems to be a bit of a hijack here.

My main concern was using “illegally” obtained evidence to exhonerate someone; not to prosecute. The law seems to bend over backwards to ensure that the innocent go free; so does it allow illegally obtained evidence to do this. FORGET ABOUT GETTING THE REAL CULPRIT!