The Good, the Bad and the Ugly of Using Wiretaps to Make (or Break) the Case

Knowledge of the intricacies of a certain country's legal system can make or break your asset recovery case. One aspect that can quickly compromise your case is wire tapping.

In this week's Quick Tip three IAAR experts: Don Semesky, Ed Davis and James McGunn, give us the dos and don'ts of wire tapping in different jurisdictions.

 

The effectiveness of an effort to recover assets is depends greatly upon understanding the legal systems. Legal systems around the world vary greatly from country to country. Knowledge of the intricacies of a certain country's legal system can make or break your asset recovery case. One such aspect that can quickly compromise your case is wire tapping.

Three IAAR experts with a multitude of professional experiences in the public and private sectors "Don Semesky, Ed Davis and James McGunn "weighed in on wire tapping in different jurisdictions.

According to Semesky, "the first and foremost point to make is to determine if the host country can conduct 'judicialized' wiretaps, meaning that the wires have been judicially approved, and can be used in court proceedings. Many countries only have intelligence wire tapping authority, so the evidence cannot be introduced.

"The next thing to determine is if the country only has 'intel' wires, can the leads from those wires be used to develop evidence? Most countries are only going to allow wires to be done in conjunction with investigation of certain types of offenses, i.e. drugs, kidnapping, etc., so you need to determine if a wire is even possible for the criminal activity that you are investigating.

"The next point would be if the seizure/forfeiture action is civil in nature, can the wire tap evidence be used," Semesky said.

He added that issues could potentially arise from evidentiary hearings in these jurisdictions. Having the original evidence released for use in another country can be problematic, and these are just the start of possible chain-of-custody issues when using wires outside of your jurisdiction.

In the United States, if the wire was legal in the country in which it was conducted, it will be admissible in a US court. There are ex parte considerations when dealing with a wire you don't want your target catching wind, so Semesky advocates the use of sealing orders on the wire application.

"Certain states allow for the wire application to remain sealed, so very sensitive information can be put in the application. Thought has to be given though to the requirements to unseal the application in the jurisdiction where you want to introduce the wire recording in court. The court in this jurisdiction is not going to be guided by the rules of a jurisdiction that allows the application to remain sealed. In a similar vein, jurisdictions such as the UK require extensive disclosure on confidential sources, which could cause serious security issues for these sources if their information was used in the wire tap application."

Davis -- founding partner at Miami's Astigarraga Davis -- added the caveat that wire tapping is usually only permitted during criminal cases.

"This is a non-issue in civil asset recovery as wiretaps are a tool reserved for governments with judicial oversight and are expressly illegal in every jurisdiction I've ever worked. The only time I've ever seen them used in civil asset recovery is after they are released in open court in a parallel criminal matter." Furthermore he adds that "as an attorney" he does have "situational ethics" that follow his work wherever he goes.

"I would have grave doubts about putting on any evidence so obtained or brought to me by a client. I'm certain that the judges I have dealt with would not be amused and would go to great lengths to exclude it if they could. Of course, I'm not talking about surveillance video which is legal or properly obtained recordings of two party conversations which are legal under local law.
 

He draws the clear distinction between what he called "legitimate phone tapings or video surveillance" to avoid confusion with rogue private "wire taps," wording he said "suggests covert third party intercepting of otherwise private and legally protected communications."
 

James McGunn, a veteran investigator based in the British Virgin Islands, has conducted such covert operations around the globe, utilizing myriad outside-the-box surveillance solutions involving audio and video. McGunn brings the point home by simply stating that "it is generally not authorized in any country except for law enforcement and intelligence officials."