Short Question:
Whether evidence obtained by wire-tapping is permitted in law? Can court rely on such an evidence and read it to reach conviction?
Brief Answer:
In terms of decisions rendered in Olmstead, McCulloch, Boyd, Jackson, Silverthorne the evidence cannot be admitted because presenting such an evidence (obtained by wire-tapping) will violate the fourth and the fifth amendment.
Discussion
The defendants in Re. Omstead, were found guilty of prohibition. Government employed experienced wireman who tapped defendants’ conversation. Tapping continued for five months. Eight telephones were tapped. 775 pages of transcript were recorded. Evidence of conversation tapped was presented.
The defendants’ objected to the admissibility of evidence in that it constituted fourth amendment violation on the ground of unreasonable search and seizure and fifth amendment violation on the ground that overheard conversations compelled the defendants to become witness against themselves.
The government defended by saying that protection of the fourth and fifth amendment did not involve telephone conversations. The government did not defend the method used and in fact acceded that the tapping, if it constituted search and seizure will render the evidence inadmissible. The government however took a stand that the telephone conversations were out of the purview of the fourth and fifth amendment. This argument was turned down.
The US Supreme Court examined whether or not espionage by wire-tapping and presenting such evidence will violate the fourth and the fifth amendment. The opinion of the court as expressed by Justice Brandeis was affirmative and said that such espionage will violate the constitution. The court explained in details why the telephone conversation as evidence were self-incriminating and why they cannot be admitted as evidence being in violation to fourth and the fifth amendment.
Explaining the law in the background of the constitution, the court referred to the decision by Justice Marshall in McCulloch v. Maryland where he said that the court had sustained various acts of the Congress as constitutional those which would not have been permitted by founding fathers of constitution. Similarly Governmental powers of due process under fourteenth amendment were permitted which otherwise would be held unconstitutional a century back. In this backdrop the Court analyzed whether wire tapping is intrusion of privacy. The court held that the Constitutional principles are not contemporary in nature. They are edifices which lay down governing principles that can be stretched looking to the changing times. The principles according to the Court were created to redress the evil. If the form of evil changed, the application of the principle will accordingly change.
Espionage by wire-tapping was a result of inventions and discovery by science. This invention and discovery could evolve new and sophisticated means of spying and consequent invasion in the privacy of an individual. Was this invasion constitutionally permitted? Wire tapping was a self-incriminating evidence in that it compelled the defendant to testify against himself. Wire-tapping was a method of espionage. Going to the background, the Court explained that in past force & violence were only known methods of getting self-incriminating evidence. Therefore, the constitution covered those methods known in vogue then. However, science changed. Methods changed. Now use of force was unnecessary for obtaining self-incriminating evidence because newer method of espionage by wire-tapping was possible. Nevertheless, the constitutional principle that incriminating evidence is not admissible did not change.
Expounding constitutional law, the court explained that the constitutional law did not cover only present but also plethora of unforeseen and unpredictable future possibilities. Advances in science may enable government present papers to jury without removing them from the secret drawers of home or permit the government to explore unexpressed thoughts, beliefs and emotions. Will the constitution permit such invasion?
The Supreme Court to explain the position referred to Boyd V/s. United States. In Byods the Court had explained the “indefeasible right of personal liberty, personal security and private property. Extortion of man’s testimony, use of private papers as evidence or forfeiting goods was held to be in condemnation of the judgment. Further referring to Jackson, the court held that sealed letters delivered to mail by government were protected by the amendment and correspondingly the telephone conversation also had same protection in that they were distinct but not different from the mail which was between two parties. Espionage by means of wire-tapping was therefore intruding the fourth and the fifth amendment.
Referring to Silverthorne the court held if the information for obtaining subpoena was unlawfully secured, the evidence was inadmissible. Interpreting fifth amendment in light of Jackson, Gouled, Silverthorne and Byod the court explained that the underlying purpose of the legislation was important. Fifth amendment applied accordingly not only to the evidence before grand jury but it applied to all the civil (if it tended the subject towards criminal responsibility) and criminal proceedings (Counselman V/s. Hitchcock).
The Court in McCarthy V/s. Arndsten explained that the narrow language of the amendment has been consistently construed “in light of its object” .. to insure that a person when acting as a witness in an investigation in a criminal trial should not be compelled to give a testimony that might tend to show that he himself had committed a crime.
Counselman V/s. Hitchcock referred to Byod in that Byod had settle the things. Unjustified search and seizure violates fourth amendment regardless the character of the paper and place from which it had been taken or even if the paper hadn’t been taken. The protection granted by the amendment was as broad as the mischief it sought to prevent.
The law of Washington – The Pierce’s Code held wire-tapping to be a crime and it constituted a crime even if done by officers of Government in aid of law enforcement. The prosecution of such a nature must discontinue according to the opinion of the court.
Comparing the Olmstead with McDowell (Burdeau v. McDowell), the court found no difference except that in McDowell lot of papers were involved. The prosecution case in Olmstead reflected no evidence except those collected by perpetrated crimes by the government officers at government expense. No conviction or indictment could rest on evidence presented in violation of the fourth and the fifth amendment.
Aforesaid discussion is based on the opinion of Justice Brandeis. Other opinions will be separately dealt with
