Commonwealth v. Marcus Mitchell: When Can You Use What You Learn From A Wiretap?

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The second Massachusetts Supreme Judicial Court case coming down the pike is Commonwealth vs. Marcus Mitchell. This deals with our favorite law here at Digital Fourth, Massachusetts’ electronic wiretapping statute, which forms part of the forbiddingly named Mass. General Laws Chapter 272: CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER.

Electronic wiretapping was never intended to become a routine day-to-day tool of the police; now, this case asks whether the police can use electronic wiretaps to prosecute offenses outside the wiretapping statute.

The court asks simply,

“whether the content of the recorded call must itself be related to the designated offense being investigated.”

In the absence of the text of the lower court ruling, we may deduce a little about the situation. We may presume that either a law enforcement officer was party to a conversation which they recorded, or that a party to such a conversation had given prior authorization to a law enforcement officer to record the contents of such a conversation. This conversation presumably uncovered evidence of a crime that is not one of the relatively small number of “designated offenses” allowed under the statute (see the complete list of current and proposed “designated offenses” in our testimony here). The police would like to use the fruits of that wiretap to prosecute a crime that is not a designated offense. If the court rules that the content of the conversation must, to comply with the wiretapping statute’s strict requirements, relate only to the designated offense, then the recording cannot be used to prosecute the suspect for the non-designated offense.

The statute provides that:

b. Any investigative or law enforcement officer, who, by any means authorized by this section has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may use such contents or evidence in the proper performance of his official duties.

c. Any person who has obtained, by any means authorized by this section, knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents while giving testimony under oath or affirmation in any criminal proceeding in any court of the United States or of any state or in any federal or state grand jury proceeding.

It would seem, therefore, that the statute does allow a law enforcement officer under oath to report the contents of “any wire or oral communication, or evidence derived therefrom” in “any criminal proceeding”, including the prosecution of a suspect for a non-designated offense.

However, the AG’s office has stated in relation to this law that:

“There are additional safeguards that ensure that only the conversations with direct correlation to the alleged crime are recorded and then permissible in any legal action.”

Note that they are not saying here that evidence of non-designated-offense crimes uncovered by use of wiretaps cannot be used in further legal actions; any conversation containing evidence of a designated offense can be used in its entirety, and that is surely the viewpoint they are likely to put forward now as part of this case.

Perhaps the issue here is that the recording itself is not admissible, introducing an element of doubt into proceedings where the content of the recording itself would provide greater certainty.

We’ll be interested to see more about this case as it goes forward, and it’s likely to be ruled on at some time during the winter.

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