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They might just be planning to use the information learned from this to assist in the prosecution without providing it as evidence? For example they could subpo

They might just be planning to use the information learned from this to assist in the prosecution without providing it as evidence? For example they could subpoena those involved in the imessage conversations or find other criminal leads?

mattlutze 11y ago
If the information is used to build a case against a particular person, my non-lawyer understanding is that it becomes evidence. Or rather, if one of those leads ends up being complicit in the charges, you have to prove as the prosecution how you came to that conclusion. You can't just say "we started investigations, then magic, then we interviewed this guy and figured it out." Historically, when the FBI or some other organization helps but doesn't want to be named as part of the process (to protect their secret methods of accessing or collecting information), prosecutors will do something called "parallel construction," in which they build an alternative timeline to how they could have come by the information that led to the new interviews. It's interesting that in this case, with the FBI publicly acting in support, they're giving up the ghost on that and opening themselves to perhaps being called for testimony. I'm curious how they'd use state secrets protections to get around having to explain their process, and whether a local/appellate/superior court justice(s) would allow it.
- venomsnake 11y ago
  My non-lawyer reads it differently - the poisonous tree fruit is when you infringe on someone's rights. If you obtain information that is not reliable, you can act on it (and convince judge to give you warrants) just probably not use it in real trial. I also think it depends if you want more information for the current suspect or you are on a fishing expedition
  - logfromblammo 11y ago
    You have to walk the entire path from the presumption of innocence. You need reasonable suspicion to accost someone in public. You need probable cause to arrest, and conduct searches or perform seizures. You need some credible evidence to go to trial. You need a preponderance of the evidence to win most civil disputes. You need clear and convincing evidence when the results of a civil dispute may impose a heavy burden or curtailment of rights on one of the parties. Criminal trials require evidence beyond reasonable doubt. Failing to propose a believable narrative for each increase in magnitude in the burden of proof may cause the entire case to fail in the US. If you collect evidence on someone that would ordinarily require probable cause when that person should be enjoying the presumption of innocence, that evidence is inadmissible, as is all investigation that depends on it to proceed. Parallel construction is taking theatrical steps ex post facto to defraud the courts into believing that evidence is not only admissible at trial, but also a reasonable basis for further investigation. If the FBI performs mass suspicionless surveillance on presumed innocent victims, finds evidence of a crime, then notifies another agency to contrive reasonable suspicion, then probable cause, to uncover the same evidence via a legally plausible narrative, that is kicking civil rights square in the teeth. Furthermore, it encourages otherwise innocent activities to be considered as reasonable suspicion, and promotes aggressive police tactics to manufacture probable cause out of reasonable suspicion, or bully people into providing consent or confessions. You get "judge dog" approving search warrants whenever the K-9 cop signals him to provide probable cause. And it combines with forfeiture to become even worse. When "accidental discovery" evidence is admissible, that is a significant weakening of the public's protections against government, as it provides additional avenues for parallel construction, such as dropping a smoke bomb through a window and pulling a fire alarm, such that responding fire department personnel can notice "drug paraphernalia" and tip the police, who get a warrant based on the tip and conduct a search for drugs. This encourages obstruction of services to promote public safety, such as disabling alarms or blocking emergency calls. When "clean hands" evidence is admissible, one "dirty hands" cop--or a paid informant--just needs to pretend to be an anonymous member of the public to tip off the "clean hands" cop. My own non-judge opinion is that poisonous fruit is when one law is broken in pursuit of enforcing another, not just when someone's rights are infringed.
    - stcredzero 11y ago
      You have to walk the entire path from the presumption of innocence. Presumption of innocence isn't directly enshrined in the US constitution. Local prosecutors and governments can and do abrogate it.
      - logfromblammo 11y ago
        The 5th and 14th amendments contain a due process clause. 49 states specify common law as the law of the land, which includes presumption of innocence. Louisiana specifies a civil code, which likewise includes presumption of innocence. The SCotUS opinion in Coffin v US stated the following: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. ...the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist." Locals can and do get overturned by the federals.
        stcredzero 11y ago
        Locals can and do get overturned by the federals. They can also get away with doing the exact opposite in their practice, only to be overturned at great personal expense to individuals with few resources.
downandout 11y ago
Yes, that would be my take on it. The government can still make use of inadmissible or illegally obtained evidence. The evidence here was obtained legally, so it will likely be used to bolster the case against the defendants and anyone that may have assisted them. Even in the case of illegally obtained evidence, there are techniques like parallel construction [1] that they can use to make their cases. They also have the so-called "clean hands" exception, which allows allows the government to introduce evidence into trial that was illegally obtained by a third party when the government did not play any role in obtaining that information [2]. The US legal system was designed to seem exceedingly fair on its surface, while allowing for unconscionable abuses by those skilled in maneuvering through its loopholes. [1] https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction [2] http://jipel.law.nyu.edu/ledger-vol-1-no-2-2-coffman/ http://jipel.law.nyu.edu/ledger-vol-1-no-2-2-coffman/
- Retric 11y ago
  Parallel construction is not legal. It's goal is to disguise the origin of information, but just because you get away with breaking the law that does not mean what you did was legal. Proving this is very hard though.
- cperciva 11y ago
  parallel construction You're probably thinking of "inevitable discovery", which says that illegally obtained information can be used anyway if the prosecution can show that they would have obtained it anyway. Parallel construction is something intelligence agencies do in order to hide how they obtained information in the first place (whether legal or otherwise).
  - nxzero 11y ago
    FBI, local law enforcement, etc use parallel construction too; for examples, look into how the FBI works with local law enforcement using tech like Stringray.
nxzero 11y ago
Unless they don't find proof that the defendants are not guilt, then legally they're required to provide this evidence.

mattlutze 11y ago

If the information is used to build a case against a particular person, my non-lawyer understanding is that it becomes evidence. Or rather, if one of those leads ends up being complicit in the charges, you have to prove as the prosecution how you came to that conclusion. You can't just say "we started investigations, then magic, then we interviewed this guy and figured it out." Historically, when the FBI or some other organization helps but doesn't want to be named as part of the process (to protect their secret methods of accessing or collecting information), prosecutors will do something called "parallel construction," in which they build an alternative timeline to how they could have come by the information that led to the new interviews. It's interesting that in this case, with the FBI publicly acting in support, they're giving up the ghost on that and opening themselves to perhaps being called for testimony. I'm curious how they'd use state secrets protections to get around having to explain their process, and whether a local/appellate/superior court justice(s) would allow it.

venomsnake 11y ago
My non-lawyer reads it differently - the poisonous tree fruit is when you infringe on someone's rights. If you obtain information that is not reliable, you can act on it (and convince judge to give you warrants) just probably not use it in real trial. I also think it depends if you want more information for the current suspect or you are on a fishing expedition
- logfromblammo 11y ago
  You have to walk the entire path from the presumption of innocence. You need reasonable suspicion to accost someone in public. You need probable cause to arrest, and conduct searches or perform seizures. You need some credible evidence to go to trial. You need a preponderance of the evidence to win most civil disputes. You need clear and convincing evidence when the results of a civil dispute may impose a heavy burden or curtailment of rights on one of the parties. Criminal trials require evidence beyond reasonable doubt. Failing to propose a believable narrative for each increase in magnitude in the burden of proof may cause the entire case to fail in the US. If you collect evidence on someone that would ordinarily require probable cause when that person should be enjoying the presumption of innocence, that evidence is inadmissible, as is all investigation that depends on it to proceed. Parallel construction is taking theatrical steps ex post facto to defraud the courts into believing that evidence is not only admissible at trial, but also a reasonable basis for further investigation. If the FBI performs mass suspicionless surveillance on presumed innocent victims, finds evidence of a crime, then notifies another agency to contrive reasonable suspicion, then probable cause, to uncover the same evidence via a legally plausible narrative, that is kicking civil rights square in the teeth. Furthermore, it encourages otherwise innocent activities to be considered as reasonable suspicion, and promotes aggressive police tactics to manufacture probable cause out of reasonable suspicion, or bully people into providing consent or confessions. You get "judge dog" approving search warrants whenever the K-9 cop signals him to provide probable cause. And it combines with forfeiture to become even worse. When "accidental discovery" evidence is admissible, that is a significant weakening of the public's protections against government, as it provides additional avenues for parallel construction, such as dropping a smoke bomb through a window and pulling a fire alarm, such that responding fire department personnel can notice "drug paraphernalia" and tip the police, who get a warrant based on the tip and conduct a search for drugs. This encourages obstruction of services to promote public safety, such as disabling alarms or blocking emergency calls. When "clean hands" evidence is admissible, one "dirty hands" cop--or a paid informant--just needs to pretend to be an anonymous member of the public to tip off the "clean hands" cop. My own non-judge opinion is that poisonous fruit is when one law is broken in pursuit of enforcing another, not just when someone's rights are infringed.
  - stcredzero 11y ago
    You have to walk the entire path from the presumption of innocence. Presumption of innocence isn't directly enshrined in the US constitution. Local prosecutors and governments can and do abrogate it.
    - logfromblammo 11y ago
      The 5th and 14th amendments contain a due process clause. 49 states specify common law as the law of the land, which includes presumption of innocence. Louisiana specifies a civil code, which likewise includes presumption of innocence. The SCotUS opinion in Coffin v US stated the following: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. ...the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist." Locals can and do get overturned by the federals.
      - stcredzero 11y ago
        Locals can and do get overturned by the federals. They can also get away with doing the exact opposite in their practice, only to be overturned at great personal expense to individuals with few resources.

downandout 11y ago

Yes, that would be my take on it. The government can still make use of inadmissible or illegally obtained evidence. The evidence here was obtained legally, so it will likely be used to bolster the case against the defendants and anyone that may have assisted them. Even in the case of illegally obtained evidence, there are techniques like parallel construction [1] that they can use to make their cases. They also have the so-called "clean hands" exception, which allows allows the government to introduce evidence into trial that was illegally obtained by a third party when the government did not play any role in obtaining that information [2]. The US legal system was designed to seem exceedingly fair on its surface, while allowing for unconscionable abuses by those skilled in maneuvering through its loopholes. [1] https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction [2] http://jipel.law.nyu.edu/ledger-vol-1-no-2-2-coffman/ http://jipel.law.nyu.edu/ledger-vol-1-no-2-2-coffman/

Retric 11y ago
Parallel construction is not legal. It's goal is to disguise the origin of information, but just because you get away with breaking the law that does not mean what you did was legal. Proving this is very hard though.
cperciva 11y ago
parallel construction You're probably thinking of "inevitable discovery", which says that illegally obtained information can be used anyway if the prosecution can show that they would have obtained it anyway. Parallel construction is something intelligence agencies do in order to hide how they obtained information in the first place (whether legal or otherwise).
- nxzero 11y ago
  FBI, local law enforcement, etc use parallel construction too; for examples, look into how the FBI works with local law enforcement using tech like Stringray.

nxzero 11y ago

Unless they don't find proof that the defendants are not guilt, then legally they're required to provide this evidence.