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In the short term, before more safeguards are put in place, it is actually much more dangerous that this program is public knowledge. When it was a secret, the

In the short term, before more safeguards are put in place, it is actually much more dangerous that this program is public knowledge. When it was a secret, the government couldn't use the information it gathered in a public case, for fear of giving up the secret. But now they can use it.

dietrichepp 13y ago
Just because it is public knowledge doesn't mean that the government can use the information to prosecute. Suppose Alice and Bob are talking about a big drug deal over the phone, and Carol (working for the NSA) listens in. Carol lets her friend Dan know, and Dan's a police officer so he goes on a stakeout and catch Alice and Bob in the act, with $1M of cocaine in the trunk of Alice's car, and $1M of cash in the trunk of Bob's car. Open and shut case, right? US case law states that the cocaine is "fruit of the poisonous tree", because the cocaine would never have been discovered by the police if it weren't for the illegal wiretap. Therefore it is inadmissible as evidence. The prosecution's case is sunk, and Alice and Bob go free. (Note that Dan never committed any crimes, might not be aware of the wiretap, and got good, hard, physical evidence that Alice and Bob were breaking the law.) So if the government tries to use an illegal wiretap in an actual criminal case, it will probably do the prosecution more harm than good. Best chance for a conviction is to pretend the wiretaps never happened. Edit: I think a good example here is "Nardone et al. v. United States." In this case, Nardone was convicted of smuggling alcohol etc. during a first trial based primarily on evidence acquired through illegal wiretaps. This conviction was overturned because the wiretaps were not admissible as evidence. On the second trial, Nardone was convicted again on other evidence. This conviction was also overturned, because the prosecutors wouldn't have had this evidence if it weren't for the wiretaps.
- cjh_ 13y ago
  Very well put. > Best chance for a conviction is to pretend the wiretaps never happened. And this is why PRISM coming to light is a good thing as it gives the defense another reason to question intent, in the scenario above it would be Bob and Alice asking why Dan was staking out their house and searching their cars.
  - ratsbane 13y ago
    I wonder if the PRISM revelations might give defense attorneys a broad strategy to deal with inconvenient evidence: "the government was illegally intercepting my client's communications; they never would have found the {cocaine|bodies|plutonium} without these illegal intercepts, thus all evidence against my client flows from this tainted knowledge and he must go free."
    - dietrichepp 13y ago
      That wouldn't work, because the defense has the burden of arguing that the evidence is tainted. Case law merely states that the tainted evidence will get excluded and that the defense must be given the opportunity to argue that the evidence is tainted. Also, let's be clear, and stop saying "the government". Let's say "the NSA" is doing the wiretap. Then we can talk about "state prosecutors" or "federal prosecutors", and talk about how those prosecutors ended up with evidence obtained by tainted means.
- cup 13y ago
  In such a hypothetical scenario would the police then be required to return the cocaine? Furthermore, would the owners of the cocaine be expemt from future prosecution. I mean, whats stopping the police from tailing them and waiting a few weeks before re-arresting them?
  - dietrichepp 13y ago
    I am no legal expert, but the purpose of the exclusionary rule is to discourage police from illegally gathering evidence, not to provide relief. See WARDEN v. HAYDEN, 387 U.S. 294 (1967) > Just as the suppression of evidence does not require the return of such items as contraband, the introduction of "mere evidence" does not entitle the State to its retention if it is being wrongfully withheld. Pp. 307-308. So just because the cocaine can't be used as evidence, doesn't mean that the police have to give it back -- it's still contraband. Maybe they would destroy it if they have no other use for it. But Alice would get her car back, if it were seized with the cocaine. As for future prosecution, nobody is exempt, but the prosecution would probably have to come up with new charges (due the fifth amendment double jeopardy clause). Waiting a few weeks would not change legal circumstances and a judge would see right through such trickery, but if I were Alice or Bob I would keep my nose clean for a while.
  - darkarmani 13y ago
    > In such a hypothetical scenario would the police then be required to return the cocaine? No. They don't have to return illegal contraband found during an improper search, but it cannot be used as evidence in a trial against them.
- pilif 13y ago
  But. Isn't the government asserting that the wiretaps are legal? If so, any evidence acquired through them would be valid evidence in court. Wouldn't it?
  - dietrichepp 13y ago
    It's not that simple. Suppose that Alice has two kilos of Cocaine in her refrigerator, and then she breaks into Best Buy and steals a 72" TV. She gets caught on camera, but they're not sure it's her, so the police get a warrant to search her house. One officer goes into the attic and finds a 72" TV... bingo, she's gonna get convicted. But another officer was in the kitchen, and found the Cocaine. No conviction. It's a legal search since they have a warrant, but the police can't use the Cocaine in the fridge as evidence, because they have a warrant to find a 72" TV. The fridge is too small for a 72" TV, so the police can't look in the fridge, and they can't use anything they find in the fridge as evidence. Alice gets busted for stealing a 72" TV, but the conviction for Cocaine gets thrown out. So, back to the wiretaps. Just because a wiretap is legal doesn't mean that all the evidence you get from a wiretap will be admissible as evidence. Second, calling the wiretaps legal does not make them so. The courts might declare that they're illegal without a warrant. Third, it's the executive branch that calls the wiretaps legal. We should be at least this specific. The executive branch can claim PRISM is legal, but only the judicial branch has the power to actually decide on the legality.
    - chopsueyar 13y ago
      You mean, like this guy? http://news.cnet.com/8301-27080_3-20007827-245.html?part=rss&subj=news&tag=2547-1_3-0-20 http://news.cnet.com/8301-27080_3-20007827-245.html?part=rss...
      - dietrichepp 13y ago
        The article says that drugs were found during the execution of a warrant, it doesn't say what the warrant was for or how the drugs were found during the execution of the warrant. You can find evidence for other crimes when you execute a warrant, you just can't look it if it's outside the scope of the warrant. Also, even if the warrant was overbroad, the evidence wouldn't get thrown out as fruit of the tainted tree, because a bad decision by a judge (e.g. grant a bad warrant) won't cause the evidence to become tainted in that way. You can exclude evidence because the police broke the law, but the judge isn't breaking the law just by interpreting it poorly. Or put another way, we don't want the police to have second-guess judges' decisions.
- mariusz331 13y ago
  I don't suppose Dan can keep the dope..
  - dietrichepp 13y ago
    Cocaine is contraband, it doesn't get un-seized just because it can't be used as evidence.
- Dylan16807 13y ago
  Are you sure about your scenario? Dan never actually used the illegal evidence to violate any rights. If he had gotten a warrant based on the wiretap it would be different and the fruit of the poisonous tree would apply. But Dan just hung out at a specific street corner. The fourth amendment was never relevant to the drug bust.

dietrichepp 13y ago

Just because it is public knowledge doesn't mean that the government can use the information to prosecute. Suppose Alice and Bob are talking about a big drug deal over the phone, and Carol (working for the NSA) listens in. Carol lets her friend Dan know, and Dan's a police officer so he goes on a stakeout and catch Alice and Bob in the act, with $1M of cocaine in the trunk of Alice's car, and $1M of cash in the trunk of Bob's car. Open and shut case, right? US case law states that the cocaine is "fruit of the poisonous tree", because the cocaine would never have been discovered by the police if it weren't for the illegal wiretap. Therefore it is inadmissible as evidence. The prosecution's case is sunk, and Alice and Bob go free. (Note that Dan never committed any crimes, might not be aware of the wiretap, and got good, hard, physical evidence that Alice and Bob were breaking the law.) So if the government tries to use an illegal wiretap in an actual criminal case, it will probably do the prosecution more harm than good. Best chance for a conviction is to pretend the wiretaps never happened. Edit: I think a good example here is "Nardone et al. v. United States." In this case, Nardone was convicted of smuggling alcohol etc. during a first trial based primarily on evidence acquired through illegal wiretaps. This conviction was overturned because the wiretaps were not admissible as evidence. On the second trial, Nardone was convicted again on other evidence. This conviction was also overturned, because the prosecutors wouldn't have had this evidence if it weren't for the wiretaps.

cjh_ 13y ago
Very well put. > Best chance for a conviction is to pretend the wiretaps never happened. And this is why PRISM coming to light is a good thing as it gives the defense another reason to question intent, in the scenario above it would be Bob and Alice asking why Dan was staking out their house and searching their cars.
- ratsbane 13y ago
  I wonder if the PRISM revelations might give defense attorneys a broad strategy to deal with inconvenient evidence: "the government was illegally intercepting my client's communications; they never would have found the {cocaine|bodies|plutonium} without these illegal intercepts, thus all evidence against my client flows from this tainted knowledge and he must go free."
  - dietrichepp 13y ago
    That wouldn't work, because the defense has the burden of arguing that the evidence is tainted. Case law merely states that the tainted evidence will get excluded and that the defense must be given the opportunity to argue that the evidence is tainted. Also, let's be clear, and stop saying "the government". Let's say "the NSA" is doing the wiretap. Then we can talk about "state prosecutors" or "federal prosecutors", and talk about how those prosecutors ended up with evidence obtained by tainted means.
cup 13y ago
In such a hypothetical scenario would the police then be required to return the cocaine? Furthermore, would the owners of the cocaine be expemt from future prosecution. I mean, whats stopping the police from tailing them and waiting a few weeks before re-arresting them?
- dietrichepp 13y ago
  I am no legal expert, but the purpose of the exclusionary rule is to discourage police from illegally gathering evidence, not to provide relief. See WARDEN v. HAYDEN, 387 U.S. 294 (1967) > Just as the suppression of evidence does not require the return of such items as contraband, the introduction of "mere evidence" does not entitle the State to its retention if it is being wrongfully withheld. Pp. 307-308. So just because the cocaine can't be used as evidence, doesn't mean that the police have to give it back -- it's still contraband. Maybe they would destroy it if they have no other use for it. But Alice would get her car back, if it were seized with the cocaine. As for future prosecution, nobody is exempt, but the prosecution would probably have to come up with new charges (due the fifth amendment double jeopardy clause). Waiting a few weeks would not change legal circumstances and a judge would see right through such trickery, but if I were Alice or Bob I would keep my nose clean for a while.
- darkarmani 13y ago
  > In such a hypothetical scenario would the police then be required to return the cocaine? No. They don't have to return illegal contraband found during an improper search, but it cannot be used as evidence in a trial against them.
pilif 13y ago
But. Isn't the government asserting that the wiretaps are legal? If so, any evidence acquired through them would be valid evidence in court. Wouldn't it?
- dietrichepp 13y ago
  It's not that simple. Suppose that Alice has two kilos of Cocaine in her refrigerator, and then she breaks into Best Buy and steals a 72" TV. She gets caught on camera, but they're not sure it's her, so the police get a warrant to search her house. One officer goes into the attic and finds a 72" TV... bingo, she's gonna get convicted. But another officer was in the kitchen, and found the Cocaine. No conviction. It's a legal search since they have a warrant, but the police can't use the Cocaine in the fridge as evidence, because they have a warrant to find a 72" TV. The fridge is too small for a 72" TV, so the police can't look in the fridge, and they can't use anything they find in the fridge as evidence. Alice gets busted for stealing a 72" TV, but the conviction for Cocaine gets thrown out. So, back to the wiretaps. Just because a wiretap is legal doesn't mean that all the evidence you get from a wiretap will be admissible as evidence. Second, calling the wiretaps legal does not make them so. The courts might declare that they're illegal without a warrant. Third, it's the executive branch that calls the wiretaps legal. We should be at least this specific. The executive branch can claim PRISM is legal, but only the judicial branch has the power to actually decide on the legality.
  - chopsueyar 13y ago
    You mean, like this guy? http://news.cnet.com/8301-27080_3-20007827-245.html?part=rss&subj=news&tag=2547-1_3-0-20 http://news.cnet.com/8301-27080_3-20007827-245.html?part=rss...
    - dietrichepp 13y ago
      The article says that drugs were found during the execution of a warrant, it doesn't say what the warrant was for or how the drugs were found during the execution of the warrant. You can find evidence for other crimes when you execute a warrant, you just can't look it if it's outside the scope of the warrant. Also, even if the warrant was overbroad, the evidence wouldn't get thrown out as fruit of the tainted tree, because a bad decision by a judge (e.g. grant a bad warrant) won't cause the evidence to become tainted in that way. You can exclude evidence because the police broke the law, but the judge isn't breaking the law just by interpreting it poorly. Or put another way, we don't want the police to have second-guess judges' decisions.
mariusz331 13y ago
I don't suppose Dan can keep the dope..
- dietrichepp 13y ago
  Cocaine is contraband, it doesn't get un-seized just because it can't be used as evidence.
Dylan16807 13y ago
Are you sure about your scenario? Dan never actually used the illegal evidence to violate any rights. If he had gotten a warrant based on the wiretap it would be different and the fruit of the poisonous tree would apply. But Dan just hung out at a specific street corner. The fourth amendment was never relevant to the drug bust.