WRITER’S QUESTION: While a PI is conducting an investigation (looking for a skip or doing surveillance) and he/she learns, overhears, or discovers evidence that may help the prosecutor (or defense) in a trial, is it admissible? For example, if cops search without a search warrant, except under well-defined circumstances anything they find is not admissible. What might be some examples of information a PI might learn that would or could be used in a trial?
GUNS, GAMS, AND GUMSHOES’ ANSWER: As private citizens, PIs are not limited by the Fourth Amendment because it applies to governmental action, meaning that private investigators are not governmental agents and are therefore not restricted by the Fourth Amendment. Police officers, parole officers, district attorney investigators, or anyone working in publicly compensated law enforcement (crime scene technicians, coroners, deputy sheriffs, etc.) are bound by the Fourth Amendment.
Therefore, anything a private investigator sees/documents is admissible evidence in court. However, PIs are not obligated by law (as law enforcement is obligated by law) to reveal their observations or seizures to the other side. For example, in one of our cases, we were lawfully in our client’s estranged wife’s residence when we documented extensive drug use and manufacture. We photographed the scene and our client’s attorney used these photographs to obtain sole custody for our client’s son. What if the estranged wife’s attorney had caught wind of this evidence and subpoenaed us to turn over this documentation? We would have used the work-product doctrine (which has nothing to do with Fourth Amendment protection and has everything to do with attorney-client privileges) to bar the revelation of the documents and our testimony. However, this is an empty hypothetical because the other side had no interest in seeing damning evidence.
When people speak in a public place, anything they say or are observed doing is admissible in court.
Eavesdropping, on the other hand, is listening in (or documenting) private conversations/actions, and those are not admissible in court. For example, if someone has a “legitimate expectation of privacy in the communication” (for example, they’re in their living room having a conversation in a hushed tone of voice), it would be eavesdropping to use a parabolic microphone to record that conversation. If, however, they’re leaning out the window of their living room, talking to someone inside the house, but their voice can be heard from the street, that is not a legitimate expectation of privacy in communication and can be documented and forwarded as evidence. Colleen captured such a conversation in an insurance investigation, and it was used as evidence at trial.
Have a great weekend, Writing PIs
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they do, is it the PI’s attorney who gets ‘punished’ by losing his license rather than the PI? If the subject doesn’t have an attorney when he comes into contact with the PI, couldn’t he just go get an attorney and indicate he had been harrassed by the PI?
As to your last question–could a person hire an attorney after being contacted by a PI, and then claim harrassment: A person cannot retroactively create an attorney-client relationship, but anyone can claim harassment by another third party. For the sake of a story, could a character talk to a PI, then afterward realize they said too much and not want what they said to that PI be admissible as evidence? Again, this character couldn’t retroactively claim attorney-client privilege, but that character might accuse the PI of harrassment, which would cast doubt on the reliability of that prior interview as evidence. In other words, a lawyer wouldn’t want to “dirty up” their case with evidence of an interview that has serious concerns about its reliability.
Guns, Gams & Gumshoes 