Wiretap Speaking Engagement

New Jersey and Wiretaps

Because the Wiretap Act is closely modeled after Title III, we give careful consideration to federal decisions interpreting the federal statute. State v. Ates, 86 A.3d 710, 719 (2014).
New Jersey’s heavy reliance on wiretapping is illustrated by the following table:

No Automatic Right to Appeal: State and Federal Dichotomy

  • N.J. Ct. R. 3:5-7(d) preserves the right to appeal from an unconditional plea of guilty to constitutional search and seizure violations only. If a defendant in a criminal action wishes to preserve his right to appeal from an adverse pretrial ruling on a statutory violation of the wiretap statute, he must do so in accord with N.J. Ct. R. 3:9-3(f).
  • In federal court, there is no automatic right to appeal any issues. This includes constitutional search and seizure violations, unless there is a trial or conditional guilty plea expressly preserving the right to appeal.
  • For states that automatically preserve the right to appeal constitutional search and seizure issues, there is a distinction between traditional searches and electronic searches. Electronic searches are not automatically preserved for appeal. However, this rule can be relaxed:
    • We have chosen not to apply Rule 3:9-3(f) when “strict adherence to its requirements would result in an injustice.'” Gonzalez, 254 N.J. Super. at 304 (quoting R. 1:1-2). Here, we recognize that Rule 3:5-7(d) speaks in broad terms about a defendant’s right to appeal the denial of a “motion to suppress evidence,” without reference to the distinction we drew in Keegan, and that defendant may well have been unaware of this distinction when he entered his plea. In the interest of fairness, we therefore proceed to address the merits of defendant’s argument that the State’s failure to comply with the inventory requirements of the Wiretap Act should have resulted in the suppression of the wiretap evidence that led to both indictments. State v. Stokes, Docket No. A-4840-12T2, pages 8-9 (Unpublished 2016).
      • Stokes is a non-binding unpublished decision in which the court ultimately ruled in the State’s favor.
      • Consistent with Stokes, the State can avoid relaxation of R. 3:9-3(f) on appeal by making the distinction between an electronic search and a traditional physical evidence search explicit in the plea forms and/or plea colloquy.
  • Often best for the Defense to pursue traditional motions to suppress physical evidence and Franks hearings first:
    • Issues automatically preserved for appeal and can always use appeal waiver for leverage if motions are denied by the trial court
    • Wire statute protects against unreasonable wire motion scheduling
      • Motions shall be made at least ten days before trial per N.J.S.A. 2A:156A-21
      • Federal rule is 18 U.S.C. 2518 § 10(a)(3): Motion shall be made before the trial . . . unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion.


  • Where the accused demonstrates that a search warrant affidavit contains material misstatements made with reckless disregard for the truth, he must be allowed to inquire further into the veracity of the affidavit. Franks v. Delaware, 438 U.S. 154 (1978). If the accused then proves such falsity by a preponderance of the evidence at a Franks hearing, the evidence seized must be suppressed.
  • A facially insufficient affidavit can not be saved by additional inculpatory evidence introduced at a Franks hearing. State v. Altenburg, 223 N.J. Super. 289, 296 (App. Div. 1988). Material omissions in the affidavit also invalidate the warrant. State v. Stelzner, 257 N.J. Super. 219, 235 (App. Div. 1992).
    • Cf. federal rule: If the challenger is permitted to marshal all exculpatory facts, fairness dictates that the government be allowed to support the affidavit with additional inculpatory information known to the affiant at the time the affidavit was made. U.S. v. Williams, 737 F.2d 594, 604 (7th Cir. 1984), cert. den. 470 U.S. 1003 (1985).
  • Regarding the interplay between material omissions in a wiretap affidavit and the necessity requirement of N.J.S.A. 2A:156A-9(c)(6), a court must evaluate the hypothetical effect of knowledge of the existence of the omitted facts on the original judge’s determination that a wiretap was necessary. U.S. v. Landeros-Lopez, 718 F. Supp. 2d 1058, 1062-63 (D. Ariz. 2010).
    • Reckless misstatements regarding the “necessity” requirement, a.k.a. the “exhaustion” requirement are material
    • No known NJ or USSC law on point demonstrates relative lack of case law due in large part to there being no automatic right to challenge wire issues on appeal
    • Analogous federal necessity requirement is codified at 18 U.S.C. 2518(3)(c).
  • Franks challenges tend to be more effective because less boilerplate is used by the affiant
    • Boilerplate used to establish a sufficient showing of “necessity” and to expand the permissible duration (racketeering) and scope of the intercept (“a vast conspiracy”) is based on case law and difficult to disprove
  • Important to have your client assist in light of voluminous wire discovery, time constraints, and client’s superior knowledge of the alleged conspirators

Franks and “Unwitting Affiants”

It is beyond question that the police cannot insulate a deliberate falsehood from a Franks inquiry simply by laundering the falsehood through an unwitting affiant who is ignorant of the falsehood. U.S. v. Shields, 458 F.3d 269, 276–77 (3d Cir. 2006); The conduct of officers who relay facts to a search warrant affiant is relevant to the Franks inquiry. U.S. v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988). See also U.S. v. Brown, 632 F.3d 638 (3d Cir. 2011) (applying Shields and Calisto in suppressing evidence obtained via reckless false statements and omissions in the search warrant affidavit sworn to by an “unwitting affiant”).


On December 30, 2008, Detective S. (hereinafter “the affiant”) claimed in paragraph 3(B) of his application for wiretap XXX-XXX-35-WT-08, that facility XXX-XXX-7413 was a facility known to belong to co-defendant J.T. This affidavit is found on the enclosed disc. This facility was always owned and utilized by co-defendant L.W. See Certification of A.H.(I); Certification of L.W. (EXHIBIT A).
This false statement was made with reckless disregard for the truth. The truth was implicitly recognized by the affiant in his earlier November 21, 2008 application for XXX-XXX-152-CDW-08X at paragraph 11(E)(2), where he swears that facility XXX-XXX-7413 received ten calls from J.T. from facility XXX-XXX-1287. (emphasis added). Logic dictates that facility XXX-XXX-7413 was not J.T.’s facility, because J. T. could not be simultaneously placing and receiving calls from himself. The omission of this information from the subsequent wiretap applications further demonstrates that it was omitted with reckless disregard for the truth. The affiant makes no attempt to explain these omissions. This false statement was material because there was no basis for wiretapping any facility used by L.W., let alone probable cause and necessity. Thus, the wiretap application would have been denied without the false statement.
Additionally, on December 22, 2008, in the affidavit designated XXX-XXX-151-CDW-08XX, in paragraph 11(B) Detective S. again places J.T. using facility XXX-XXX-1287. This false information was also omitted from subsequent affidavits. The logical inference is that Detective S. realized that his false assertions were demonstrably false, and he tried to conceal them by not repeating them. Still, failing to expressly alert the issuing judge of the previous false assertions constitutes material omissions made with reckless disregard for the truth in all subsequent affidavits.
The affiant tries to conceal his false assertions by claiming on January 29, 2009, in paragraph 21 of the affidavit designated XXX-XXX-6-WT-09 that further investigation has revealed that J.T. has passed two of his original telephone facilities to L.W. and F.J. Nevertheless, this bald assertion is not even supported by the inherently suspect word of a confidential informant, a technique used by the affiant throughout his affidavits. While this uncorroborated assertion does trigger the issuing judge’s duty to inquire in camera as to additional information concerning the affiant’s basis, neither the affidavit nor the related orders indicate that any such inquiry was made. See N.J.S.A. 2A:156A-10(f). See https://fredsisto.com/wp content/uploads/motionpractice.pdf for the complete brief.
There is no such in camera review provision contained in the federal Electronic Communications Privacy Act (ECPA). See 18 USC § 2510, et seq.

“Necessity” (a.k.a. “Exhaustion”)

  • Upon consideration of an application, the judge may enter an ex parte order, as requested or as modified, authorizing the interception of a wire, electronic or oral communication, if the court determines on the basis of the facts submitted by the applicant that there is or was probable cause for belief that: Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ. N.J.S.A. 2A:156A-10(c) . This mirrors the federal necessity provision at 18 U.S.C. § 2518(3)(c).
  • A Good starting point is considering every non-wire avenue that could have been utilized and was not: visual surveillance, interviewing subjects, the use of informants, telephone record analysis, promises of immunity, testimonial subpoenas, documentary subpoenas, trash searches, electronic tracking devices, traditional search warrants, Terry stops, police databases, pole cameras, undercover infiltration, etc.
  • Even CDWs for phone records are much less intrusive than wiretaps
    • Also, note the successes of the normal investigative techniques employed to undermine the alleged need for wiretapping
    • A tension inherent in every application for a wiretap order: The greater the probable cause provided by normal techniques, the less likely a wire was “necessary.” Probable cause must be demonstrated before any search warrant can issue.
  • Be prepared to rebut boilerplate language regarding an alleged “need to determine the full scope of the conspiracy”
  • A bald assertion that can always be made, but should not be accepted without reliable evidence that (1) a vast conspiracy exists and (2) that the alleged co-conspirators can not be uncovered through traditional investigative means

Undermining “Necessity”

The State must demonstrate that the use of CDWs would be ineffective or dangerous before resorting to the more intrusive wiretaps. U.S. v. Castillo-Garcia, 117 F.3d. 1179, 1187-88 (10th Cir. 1997).

    • Cf. Wiretaps are not reserved for a use as only a last resort. U.S. v. Falcone, 364 F. Supp. 877 (D.N.J. 1973)
    • Both cases are non-binding in state court, but non-binding cases are useful in the absence of binding wiretap case law
    • Even binding cases have to be re-examined in light of vast changes in technology since the opinions were written
      • There is not a “necessity” for wiretaps to determine the location of things like suppliers, conspirators, stash houses, etc. in light of newer and comparatively less intrusive GPS technology.
    • Costs of investigation and results-oriented inclinations
      • See Scott v. U.S., 436 U.S. 128 (1978): District Court’s suppression for minimization violations where there was a complete lack of intrinsic minimization reversed by a divided SCOTUS despite the majority’s recognizing “the fact that virtually all the conversations were intercepted while only 40% of them were shown to be narcotics related.” Id. at 132.


      • No wire interception shall occur for any longer than is necessary under the circumstances. N.J.S.A. 2A:156A-12(f). The interception shall begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of communications not subject to interception by making reasonable efforts, whenever possible, to reduce the hours of interception that are authorized. Id.
      • Cf. differences in the federal minimization provision at 18 U.S.C. 2518(5): No order entered under this section may authorize . . . the interception . . . for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Such thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered. Extensions of an order may be granted. . . . The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. . . An interception under this chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.
      • If an interception is obtained in violation of The Act, the entire contents of all interceptions and evidence derived therefrom shall be suppressed. State v. Worthy, 141 N.J. 368, 380-81 (1995)
      • Section 2518(10)(a) is the federal provision requiring suppression for violations of the federal statute.
      • Any minimization violation results in the suppression of the entire contents of all communications. State v. Catania, 85 N.J. 418, 426 (1981). A defendant who was party to a single communication during the course of a wiretap has standing to suppress the entire wiretap results because of the State’s failure to minimize its interception of any communication during the course of that wiretap. Id.
      • Whether or not the violation occurred in good faith or unintentionally is irrelevant. Worthy, at 384-85. In light of the Legislature’s concern for privacy and the need for an effective exclusionary rule to effectuate the protection of privacy, an “inevitable discovery” exception cannot apply to evidence obtained in violation of the Act. Id. at 390. The Act constitutes an intrusion into individual privacy rights and should be strictly interpreted and meticulously enforced. Id. at 384.
        • “Good faith exception” applies to federal violations.
      • Electronic surveillance represents a greater threat to individual privacy than do traditional searches and seizures. Catania, at 440. [Traditional searches and seizures] represent the culmination of a long investigation process, and are accompanied by a search warrant that particularizes the areas to be searched. A wiretap, on the other hand, is itself a major investigative tool. Unless the police take great care to minimize, they will overhear not only the particularized conversations they are searching for, but private conversations unrelated to the search. This invades the privacy of both the person who is the target of the wiretap, and that of innocent callers whose most personal conversations are being overheard by the wiretap monitors. Id. Thus, electronic surveillance must represent no greater invasion of privacy than is necessary under the circumstances. Catania, at 428.
      • Section 12(f) of the wiretap statute plays a crucial role as one of the few provisions which requires the police to protect the privacy of callers. Id. at 422. Monitors must make a good faith effort to comply with minimization requirements. Id. at 423. Additionally, the actual minimization must be reasonable. Id. The Legislature intended New Jersey’s minimization requirements to be more stringent than the federal and other state standards. Id. at 429.
      • Intrinsic minimization = terminating the interception of a communication when it is not pertinent to an offense in the wiretap order or spot monitoring (periodically tuning in and out) to see if a non-pertinent communication becomes pertinent
      • Extrinsic minimization = Reducing the hours and total duration of the intercept
        • Terminating the intercept after 18 days even though the order provides for a maximum of 20 days
        • Reducing 7 am to 11 pm, seven days per week monitoring permitted by initial Order, to 10 am to 10 pm Monday through Saturday in light of CDW and trends regarding pertinence
        • CDW trends should be examined by the wiretap affiant before the wiretap order is requested in order to extrinsically minimize from the start
        • Ex: 90 days of call data preceding the wiretap application reveals no calls are placed or received from the target facility between the hours of 11 pm and 7 am
        • Ties in with material omissions in affidavits and a Franks hearing


      • Under the less stringent federal standards, it is widely held that once the issue of minimization has been raised, the Government must make a prima facie showing that its efforts were reasonable. See U.S. v. Armocida, 515 F.2d. 29, 45 (3d Cir. 1975). Once such a showing has been made, the burden shifts to the defense to demonstrate that more effective minimization could have taken place. Id. Because of the ad hoc nature of any determination of reasonableness, the sufficiency of minimization efforts must be judged on a case-by-case basis. Catania, at 433.
      • Judicial approaches to minimization have been far from uniform. The “Minimization” Requirement in Electronic Surveillance: Title III, the Fourth Amendment, and the Dread Scott Decision, American University Law Review, page 350.
        • Beyond the allocation of burdens of proof noted above, the only general principle that has emerged is that the length and scope of the hearing are within the sound discretion of the trial judge. See Steadman v. SEC, 450 U.S. 91, 95, (1981).
      • The prosecution should have to call and conduct the direct examination of any witnesses despite the intercept being a “warrant search”
        • Electronic surveillance is a very different kind of “warrant search” per the description above from Catania.
        • A party’s access to proofs tends to support allocating the burden of proof to that party. We generally have imposed the burdens of persuasion and production on the party best able to satisfy those burdens. Our decisions have recognized that the party with greater expertise and access to relevant information should bear those evidentiary burdens. State v. Wright, 410 N.J. Super. 142, 150 (2008) (case involving a bail source hearing).


“There are three kinds of lies: lies, damned lies, and statistics.“ —Mark Twain (among others), who attributed the quote to British Prime Minister Benjamin Disraeli

      • In assessing the objective reasonableness of the monitors’ actions, courts should avoid blind reliance on numbers and percentages alone. Catania, at 433; Scott v. U.S., 436 U.S. 128, 141 (1978)
      • Session 771 from facility 7226 demonstrates how limiting analysis to numbers and percentages tends to mislead. There, the monitor listened to the non-pertinent conversation in its entirety. The communication was minimized at the last second, once it was clear that the parties were terminating the call. While this communication was classified as “minimized” under spreadsheet category “AS”, the “minimization” did nothing to protect the parties’ privacy. Similarly, any claims by the State that they were employing “extrinsic minimization” during the time periods when they stopped monitoring because it was clear that Savoy had stopped using his phone for the evening are misplaced because if no communications are occurring, there is nothing to minimize. Furthermore, the SMS (text) communications that occurred during the State’s alleged “extrinsic minimization” were still captured and reviewed later. See, for example, the text message and spreadsheet entry for session 98 from facility 7226, depicting an inadmissible and personal text between a husband and wife that was recorded and reviewed a short time after it was received. Thus, there was no extrinsic minimization because despite the short delay in reviewing these texts, the communicants’ privacy interests were still invaded. Moreover, any attempt to downplay the number of minimization violations by citing to the large number of sessions in the spreadsheet is mis-leading because the sessions listed on each spreadsheet include: many duplicate calls that were registered in error, calls that were not answered, calls that did not contain any audio, calls that did not contain any conversation, calls that did not record, calls of an unknown nature, and calls shorter than one minute and thirty seconds which were not analyzed here, among others, wherein the State made no effort to minimize or eliminate their monitoring. See spreadsheet column ‘I’.

With regard to the challenged sessions, the Defense disputes all of the monitors’ designations of “pertinent”. With regard to the designations of “non-drug-pertinent”, note that the State never sought an Order to intercept anything other than communications related to drug distribution. See the Affidavits and Orders for WT #6, WT #7, and WT # 10, contained on the DVD provided to the Court as State’s Exhibit I. Therefore, monitors’ classifications of “non-drug pertinent” are the functional equivalent of a “non-pertinent” designation, i.e. they refer to communications that were not authorized for interception.

The State’s memo continues: “Interception of conversations must always involve crimes which are enumerated in the wiretap statute.” Id. at 4. If evidence of an enumerated offense other than drug distribution was intercepted, monitors are required to “Immediately . . . notify the plant supervisor and one of the assistant prosecutors assigned to this case in order that he may seek an amendment to the wiretap order.” Id.


      • “The following facts are based on the State’s proffer to the trial court and are not in dispute . . . Among many hours of interceptions, the State recorded two or three phone calls and intercepted five text messages between Savoy and Terry.” State v. Terry, 94 A.3d 882, 885 (2014); 218 N.J. 224.
        • Egregious error in the alleged facts before the Supreme Court that was demonstrably false with the discovery discs
      • There were over 300 calls and texts messages intercepted between the husband and wife co-defendants
        • Even the trial and appellate prosecutors whose office investigated the case and produced the discovery discs were presumably unaware of how to access and analyze the massive discovery
        • Ctrl +F a great time-saving tool with massive wire discovery
      • Spreadsheets and phone numbers
      • Party names and aliases
        • Be sure to include likely mis-spellings


      • Catania established that monitors should be given one full minute to assess the initial pertinence of a communication.
      • Ramirez suggested that the spot-monitoring of non-pertinent communications occur in 30 second intervals.
        • Communications lasting less than one minute and 30 seconds are generally not analyzed for intrinsic minimization violations.
      • Exceptions
        • Should reasonably recognize the voice or phone number of the holder of a privilege (ex: attorney)
        • Should reasonably recognize the voice or phone number of a repeatedly innocuous caller (ex: target’s grandmother)
        • Should reasonably recognize the voice of the target, especially late in the investigation (target’s daughter using his phone to call a friend)
      • Once the initial minute of a non-pertinent communication is evaluated, under U.S. v. Ramirez, 479 F. 3d. 1229, 1235 (10th Cir. 2007), at least one half of the remainder of the communication should be minimized through spot-monitoring. Nevertheless, the numerous sessions at issue involve non-pertinent conversations wherein the monitored portion far exceeded the minimized portion by a more than 2:1 ratio.
      • The less exacting federal case law standards are cited in light of the relative lack of state precedent. Note that New Jersey standards are not only intended to be more stringent than federal standards, but they can never be less stringent. State v. Barber, 169 N.J. Super. 26, 30 (Law Div. 1979).


2A:156A-16. Service, contents of inventory

16. Within a reasonable time but not later than 90 days after the termination of the period of the order or of extensions or renewals thereof, or the date of the denial of an order applied for under section 13 of P.L.1968, c.409 (C.2A:156A-13), the issuing or denying judge shall cause to be served on the persons named in the order or application, persons arrested as a result of the interception of their conversations, persons indicted as a result of the interception of their conversations, persons whose conversations were intercepted and against whom indictments are likely to be returned, persons whose conversations were intercepted and who are potential witnesses to criminal activities, and such other parties to the intercepted communications as the judge may in his discretion determine to be in the interest of justice, an inventory which shall include:

a. Notice of the entry of the order or the application for an order denied under section 13 of P.L.1968, c.409 (C.2A:156A-13);

b. The date of the entry of the order or the denial of an order applied for under section 13 of P.L.1968, c.409 (C.2A:156A-13);

c. The period of authorized or disapproved interception; and
d. The fact that during the period wire, electronic or oral communications were or were not intercepted.

The court, upon filing of a motion, may in its discretion make available to such persons or their attorneys for inspection such portions of the intercepted communications, applications and orders as the court determines to be in the interest of justice. On an ex parte showing of good cause to the court the serving of the inventories required by this section may be postponed.

This sub-section mirrors the federal inventory requirements at 18 U.S.C. 2518 (8)(a).

Inventories and Suppression

Since the New Jersey wiretap statute is intended to be more stringent than the federal and other state statutes, it is noteworthy that suppression is required under another state’s statute, even without a showing of prejudice. In Connecticut v. Formica, 3 Conn. App. 477, 479 (Conn App. 1985), the Appellate Court of Connecticut held that failure to strictly comply with the inventory provision requires suppression.

In so holding, the Court looked to the mandatory language of the statute which states that the panel “shall cause to be served on persons not named in the order or application whose communications were intercepted, an inventory.” Id. at 479-480 (emphasis added). That same mandatory language is found in the inventory provision of N.J.S.A. 2A:156A-16.

While the Formica Court did not condition suppression on a showing of prejudice, it noted that a failure to serve an inventory within the required time period prevents a defendant from making a pre-indictment motion to obtain copies of his conversations. Id. at 482-83. Thus, an aggrieved party may be prejudiced by their inability to mount an early defense. The same is true regarding an aggrieved party’s inability to offer cooperation early on, when the State is most likely to need their assistance in exchange for leniency.

The Court also held that the failure to serve an inventory within the required time period prevents a defendant from promptly seeking civil remedies under the wiretap statute. Id. at 482-83. Thus, in New Jersey and Connecticut an aggrieved party may be prejudiced by their inability to seek actual and punitive damages. See N.J.S.A. 2A:156A-24. This is particularly true of aggrieved parties who are never charged with any wrongdoing. Since these parties are not privy to the discovery that alerts them to the fact that their communications were intercepted, the failure to serve them with inventories means they will never be alerted to their right to seek civil remedies under the wiretap statute.

Regarding the statutory language shared by New Jersey and Connecticut, that “An aggrieved person may move to suppress the contents of the interception on the grounds that the interception was not made in conformity with the order of authorization”, the Court rejected the notion that this provision does not apply when the violation occurred post-interception. Formica, at 480. Indeed, the State did not even argue that position since it would permit a total disregard of the inventory requirement. Id.

Disregarding the inventory requirement would erode a substantive part of the statute that seeks to limit the use of wiretaps as an investigative device. Id. at 482. Thus, courts should look to the plain language of the statute, as opposed to carving out exceptions based on actual prejudice or intentional violations. Id. Before the State may use the fruits of its wiretap, it must follow the important dictates of the statute that permitted it to wiretap in the first place. Id. at 483. This approach is the only way to ensure the integrity of the wiretap statute and the functioning of the judiciary with respect to it. Id.

SCOTUS and most states that have addressed the issue do not allow suppression as a remedy for an inventory violation absent a showing of prejudice. See U.S. v. Donovan, 429 U.S. 413, 435 (1977). Some jurisdictions allow for suppression if it can be demonstrated that the failure to abide by the inventory requirement was prejudicial to the defendant or due to “insolent flouting” of the rule, as opposed to mere oversight. See U.S. v. Harrigan, 557 F. 2d 879, 882 (1st Cir. 1987); U.S. v. Crumpton, 54 F. Supp. 2d 986, 1012-13 (D. Co. 1999); U.S. v. Savaiano, 843 F.2d 1280 (10th Cir. 1988); State v. Marine 646 A. 2d. 872, 876 (Del. 1983); State v. Hinton, 415 N.W. 2d. 138 (Neb. 1987); State v. Irwin, 718 P. 2d. 826, 832 (Wash. App. 1986).

New York’s wiretap statute creates a suppression remedy if the State fails to provide defendant with a copy of the wiretap warrant and accompanying application “within 15 days after arraignment and before the commencement of the trial.” NYCPL § 700.70. Texas’s wiretap statute provides that “in no event may any evidence derived from an order under this article be disclosed in any trial, until after such inventory has been served. Tex. Code Crim. Pro. Art. 18.20 § 13.

Driver hearings

      • As a condition precedent to admitting an audio recording, the speakers should be identified and it should be shown that (1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement. In all situations, the trial judge should listen to the recording out of the presence of the jury before allowing it to be used. In this way he can decide whether it is sufficiently audible, intelligible, not obviously fragmented, and, also of considerable importance, whether it contains any improper and prejudicial matter which ought to be deleted. State v. Driver, 38 N.J. 255, 287-288 (1962).
      • Less demanding federal requirements: “It is well settled that the admission of tape recordings at trial rests within the sound discretion of the trial court.“ U.S. v. Robinson, 707 F.2d. 872, 876 (6th Cir. 1983). In order to be admissible, the district court must determine whether the tapes are “audible and sufficiently comprehensible for the jury to consider the contents.“ Id. at 876. The district court abuses its discretion only “where the unintelligible portions of a tape recording are so substantial that the recording as a whole is rendered untrustworthy.“ U.S. v. Scaife, 749 F.2d. 338, 345 (6th Cir. 1984).
      • Hearings force the prosecution to reveal which specific communications in the massive discovery need to be defended at trial.

Final Thoughts