# Lawyer dopers: can this be done?
**URL:** https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413
**Category:** Factual Questions
**Created:** [May 15, 2003, 11:55am UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413 "2003-05-15T11:55:21Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@BwanaBob](https://boards.straightdope.com/u/BwanaBob)
#### Post date: [May 15, 2003, 11:55am UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/1 "2003-05-15T11:55:21Z")
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.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [May 15, 2003, 2:35pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/2 "2003-05-15T14:35:39Z")
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.
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### Author:  [@db4530](https://boards.straightdope.com/u/db4530)
#### Post date: [May 15, 2003, 2:50pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/3 "2003-05-15T14:50:34Z")
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.
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### Author:  [@Robb](https://boards.straightdope.com/u/Robb)
#### Post date: [May 15, 2003, 3:31pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/4 "2003-05-15T15:31:19Z")
In Texas, it appears that you could use it in your favor.
> [@](#):
>
> [Art. 38.23.](http://www.capitol.state.tx.us/statutes/cp/cp0003800.html#cp021.38.23.) [727a] Evidence not to be used
> (a) No evidence obtained by an officer or **other person** in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
> In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
But, if it was obtained in violation of any law in Texas, it would not be admissible against the real criminal.
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### Author:  [@pravnik](https://boards.straightdope.com/u/pravnik)
#### Post date: [May 15, 2003, 3:33pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/5 "2003-05-15T15:33:20Z")
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).
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### Author:  [@db4530](https://boards.straightdope.com/u/db4530)
#### Post date: [May 15, 2003, 3:34pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/6 "2003-05-15T15:34:46Z")
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.
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### Author:  [@ratatoskK](https://boards.straightdope.com/u/ratatoskK)
#### Post date: [May 15, 2003, 4:04pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/7 "2003-05-15T16:04:46Z")
I thought it was illegal for a private citizen to tape a phone conversation without the other person’s consent?
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### Author:  [@BwanaBob](https://boards.straightdope.com/u/BwanaBob)
#### Post date: [May 15, 2003, 4:13pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/8 "2003-05-15T16:13:23Z")
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.
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### Author:  [@doctordoowop](https://boards.straightdope.com/u/doctordoowop)
#### Post date: [May 17, 2003, 7:01am UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/9 "2003-05-17T07:01:27Z")
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.
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### Author:  [@LH75](https://boards.straightdope.com/u/LH75)
#### Post date: [May 17, 2003, 10:44am UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/10 "2003-05-17T10:44:36Z")
> [@](#):
>
> I thought it was illegal for a private citizen to tape a phone conversation without the other person’s consent?
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?
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### Author:  [@Papermache\_Prince](https://boards.straightdope.com/u/Papermache_Prince)
#### Post date: [May 17, 2003, 11:24am UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/11 "2003-05-17T11:24:26Z")
Wiretap laws vary by state. According to [Can We Tape?](http://www.rcfp.org/taping/), 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](http://abcnews.go.com/sections/us/DailyNews/tripp000524.html)) dropped its prosecution of her for violating state laws.
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### Author:  [@doctordoowop](https://boards.straightdope.com/u/doctordoowop)
#### Post date: [May 17, 2003, 6:32pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/12 "2003-05-17T18:32:41Z")
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.
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### Author:  [@doctordoowop](https://boards.straightdope.com/u/doctordoowop)
#### Post date: [May 17, 2003, 6:36pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/13 "2003-05-17T18:36:07Z")
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.”
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### Author:  [@Opus1](https://boards.straightdope.com/u/Opus1)
#### Post date: [May 17, 2003, 7:42pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/14 "2003-05-17T19:42:52Z")
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.
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### Author:  [@lucwarm](https://boards.straightdope.com/u/lucwarm)
#### Post date: [May 17, 2003, 7:49pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/15 "2003-05-17T19:49:44Z")
> [@](#):
>
> \*Originally posted by doctordoowop \*
> \*\*The main problem is the admissability of the tape. It is hearsay- the legal meaning, \*\*
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?
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### Author:  [@Blalron](https://boards.straightdope.com/u/Blalron)
#### Post date: [May 17, 2003, 7:52pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/16 "2003-05-17T19:52:09Z")
> [@](#):
>
> i guess ken starr didn’t take that into consideration when linda tripp taped her phone conversations with monica lewinsky.
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.
> [@](#):
>
> would this set a legal precedence?
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.
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### Author:  [@doctordoowop](https://boards.straightdope.com/u/doctordoowop)
#### Post date: [May 17, 2003, 8:36pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/17 "2003-05-17T20:36:39Z")
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.
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### Author:  [@lucwarm](https://boards.straightdope.com/u/lucwarm)
#### Post date: [May 17, 2003, 8:53pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/18 "2003-05-17T20:53:30Z")
> [@](#):
>
> \*Originally posted by doctordoowop \*
> \*\*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:
> [@](#):
>
> Rule 804. Hearsay Exceptions; Declarant Unavailable
> (a) Definition of unavailability.
>
> “Unavailability as a witness” includes situations in which the declarant–
>
> (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement
>
> * * *
>
> (b) Hearsay exceptions.
>
> The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
>
> * * *
>
> (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
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### Author:  [@doctordoowop](https://boards.straightdope.com/u/doctordoowop)
#### Post date: [May 17, 2003, 11:27pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/19 "2003-05-17T23:27:04Z")
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
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### Author:  [@BwanaBob](https://boards.straightdope.com/u/BwanaBob)
#### Post date: [May 30, 2003, 12:40pm UTC](https://boards.straightdope.com/t/lawyer-dopers-can-this-be-done/175413/20 "2003-05-30T12:40:50Z")
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!
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