In pretty much any fiction that deals with organized crime, anyone who tries to leave the life is at risk of being killed because of what they know. If Paulie wants to leave the family, then he needs to be killed before he decides to go to the authorities and testify against his former accomplices. In fiction, these defectors are typically marked for death even if they have no intention whatsoever of cooperating with the authorities. It always bugs me, though, because it seems like they should have a pretty straightforward way of protecting themselves.
Suppose I’m in a criminal organization. One day I decide I’m sick of the life and want to go straight. So, I sit down with a recording device and share a large amount of incriminating information about my associates. I do whatever I can to ensure the recording can be authenticated and verified as not coerced. I then stick a copy of the recording in an envelope, hire a lawyer and give strict instructions that the envelope be handed over to the authorities in the event of my death or if I go missing for a length of time. I then tell my associates about the arrangement and ride off into the sunset, confident that it’s riskier for them to kill me than to let me live.
So, my question is what would be the problems with such a plan? Would my recorded testimony be legally admissible? Would any lawyer take on such a responsibility, or would they be required to hand over the recording if they suspected the information on it? If they authorities caught wind of what I did, would they be able to seize the recording while I’m still alive?
If anyone could shed some light on the legalities of such a plan I would be appreciative.
There’s two issues I can think of: would the tapes be admissible in court, or would they be considered hearsay? And would attorney-client privilege allow the attorney to keep the tapes secret?
IANAL, but I think the hearsay issue is debatable. Normally witnesses are required to be made available for cross-examination, or the defendants can’t get a fair trial. There’s an exception for the statements made in the belief that one’s death is imminent, but I’m not sure that you could successfully argue that your death is “imminent” in this case—this exception is usually reserved for cases where the victim has been stabbed and with his dying breath says, “the butler did it.” (Or similar.) The declaration against interest exception might be more fruitful, but you’d have to you implicate yourself in the documents, i.e., “Tony Imperioli and I kidnapped Mr. Gunderson from his home and drove him to an abandoned woodlot north of Tewksbury, at which point Mr. Imperioli shot Mr. Gunderson, and we buried his body there.”
Concerning attorney-client privilege, I think this is a little more clear-cut: my impression is that your attorney is required to reveal your statements to him/her if he/she believes that you’re about to commit a crime, but that confessions of past crimes are protected by the privilege. So if you’re really “going straight”, then I think that privilege would apply. But, again, IANAL, and hopefully a real one will be along shortly.
If your instructions to the attorney are to deliver the tape to the authorities, then attorney-client privilege are not an issue. The attorney’s job in this case is to follow the client’s instructions once the conditions are fulfilled (i.e., the client dies).
Whether the tape as described is admissible is more difficult. If the tape were actual conversations, it would be gold for the prosecution, but just a listing of crimes is more difficult. However, if it said, “Victim X is in shallow grave by mile marker 182 of the New York State Thruway,” the DA could go to that location to look for evidence. That evidence would make the conviction, and the tape wouldn’t have to be admitted…
Wouldn’t you still need the tape in order to connect the body with the perpetrator? I mean, even without that, I’m sure the body would still be useful for the forensic teams, but the only thing they’re guaranteed to learn from it is “so-and-so is dead”. It won’t necessarily say anything about who killed them, which is the question the authorities are really interested in.
How about renting a private type of PO Box and putting the evidence in the box with instructions for it to be mailed/delivered if rent on the box goes unpaid?
Personally, I’d think of a way to accumulate a massive amount of cash and just disappear.
Nope. A statement against your own interest can’t be admitted for the truth of the matter against another party. At best, the jury would see a redacted version:
“▓▓▓▓ ▓▓▓▓▓▓▓▓ and I kidnapped Mr. Gunderson from his home and drove him to an abandoned woodlot north of Tewksbury, at which point Mr. ▓▓▓▓▓▓▓▓ shot Mr. Gunderson, and we buried his body there.”
See Cruz. v. U.S., and Burton v. U.S. (citations on request).
The letters would be hearsay, and generally inadmissible at a trial. However, the police don’t need admissible evidence to begin an investigation, and can rely on such letters to investigate and uncover admissible evidence. They can, for example, search the woodlot north of Tewksbury, find the body, and use whatever forensic evidence is unearthed against Imperoli.
Maybe, but a I think at least a tiny bit less likely. There probably are some gangsters who are happy to ‘take care of’ other gangsters, but hesitate to take drastic action against a lawyer. Offing a lawyer won’t bring quite as much law-enforcement heat on you as killing a cop, but close, and certainly a lot more attention than making Johnny Lowlife disappear would. And most long-term successful mobsters realize that lawyers are valuable and don’t want to enrage and/or scare the entire (non-prosecutor) legal profession. Word gets out that the Mob regularly kills lawyers who get involved with them, pretty soon there’s going to be nobody competent arguing to exclude the posthumous tapes/illegal searches/warrentless wiretaps when they do get to the cops/DA. Plus, judges are all lawyers and you don’t want them excessively pissed off at you either.
The explicit forfeiture by wrongdoing rule of evidence is relatively recent – adopted in the late 1990s in the federal system, and by only a minority of states. But it is intended to codify the common-law rule that has existed for centuries: “…if a witness is absent by [the defendant’s] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.” Reynolds v. U.S., 98 U.S. 145, (1878).
The rule requires two findings, by preponderance of the evidence:
(1) The accused engaged in or agreed to wrongdoing that was intended to render the declarant unavailable as a witness and did, in fact, render the declarant unavailable as a witness;
(2) The intent of the conduct was to prevent the witness from testifying.
In other words, killing someone isn’t enough, even though you might argue that by killing, you intend for the victim to be dead and thus unavailable. The purpose of the killing must be to eliminate a witness.
See US v. Gray, 405 F. 3d 227 (4th Cir. 2005); Giles v. California, 554 U.S. 353 (2008).
So the problem would be to show by preponderance of the evidence that Imperioli killed the declarant, and did so to prevent his testimony.There’s nothing in the OP’s hypothetical that would allow the court to find this to be true – the information in the envelope is about past crimes, and (obviously) not testimony about how Imperioli threatened or attacked (or killed!) the unnamed declarant.
Right: you’d need a torture-proof mechanism: one you can set up, but nothing you do or say can countervene. I can’t think of a good way to do this; maybe someone else can.
Declare that you have multiple copies of incriminating evidence positioned for delivery in the event of your death. They can torture you all they want, and maybe you’ll reveal one or two caches, but they’ll never really be sure if you’ve revealed the locations of all of the copies of the evidence. IOW, torturing/executing you under these circumstances is risky; it will be safer for them to leave you alone.
Even if you could count on your now-former associates to rationally decide that torturing you is riskier than letting you go, they can’t rationally let let your technique become a common retirement strategy.
You’re probably not going to get hit by a bus/get a terminal disease anytime soon. But if multiple people start recording incriminating evidence as an insurance policy then pretty soon one of them is going to, completely coincidentally, kick the bucket while the evidence is still fresh enough to interest the government. The mob has to make an example of you/your family to discourage anyone else from trying the same thing.
What I never get is why can’t a former criminal in this situation just convert his ill-begotten gains to bearer bonds, then go live in Argentina or Norway or something. Assuming he’s got a valid U.S. passport, and no convictions…I suppose that is a big problem. As I understand it, if someone who has felony convictions on their record tries to travel to most foreign countries, there’s a computerized and automated method they can use to scan your passport and automatically pull up a listing their convictions, right at the border control checkpoints.
Some countries won’t allow people with convictions to even enter, much less get a visa .
And most mobsters, from reading wiki, usually have been caught at least once and have spent time in prison.
That’s not an easy case to make, but not impossible, particularly with just a preponderance of evidence standard.
And I’m not sure you can even say there’s nothing in the OP to support that; after all the stoolie, I mean declarant, thought that being killed to shut him up was likely, or he wouldn’t have left the recorded statement, right? [I guess it’s an interesting legal question as to whether the existence (but not contents) of the statement is admissible in a hearing to determine whether the contents of the statement is admissible?]
I mean, not that I have any experience in this kind of thing, but my WAG is that you wouldn’t need too much evidence to make it more likely than not the stoolie was killed to shut him up.
I would think that if, say the stoolie’s body was found and then the recorded statements made public, a judge might easily rule that having been killed by the Imperioli is on the balance of evidence more likely than the stoolie having decided to take a walk in the woods upstate while cleaning his gun, accidentally shooting himself in the back of the head, and then burying himself before dying.
Those aren’t the only two options. Who’s to say that the declarant wasn’t killed by Salvatore, who feared that if Imperioli was arrested, Imperioli would then roll over and tesitify against Salvatore?
Even for the comparatively low “preponderance of the evidence,” you cannot simply point to a motive and assign the blame to the person who possesses that motive. You need affirmative evidence that directly ties Imperioli to the killing.