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Posts Tagged ‘attorney-client privilege’

When Is a Private Investigator’s Evidence Admissible in Court?

Posted by Writing PIs on August 9, 2014

 

gavel and scales

 

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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All rights reserved by Colleen Collins. Any use of the content requires specific, written authority. The images in this article are licensed and the author does not have the legal authority to share with others. 

Posted in Q&As | Tagged: , , , | Comments Off on When Is a Private Investigator’s Evidence Admissible in Court?

Answering Writers’ Questions: Law Firms Using PIs and Needing to Know if a Subject Has a Lawyer

Posted by Writing PIs on August 23, 2009

Sam Spade

Today we’re posting some writers’ questions (and our responses)¬†about law firms using PIs, the importance of PIs knowing if subjects are represented by counsel, and could a character retroactively claim attorney-client privilege.

Writer’s Question: Do all law firms have a need for PI’s? I realize the obvious ones do, but it sounds to me like they all do. Could you give some examples of not so common law practices that may need a PI’s services?

Guns, Gams, and Gumshoes Answer: There is a rule of law that says an attorney cannot testify in any matter about his/her own investigation and continue to act as an attorney in that case. So, in most cases, any law firm that presents facts in a disputed case will want to hire an investigator (the only other way to get facts on the stand is through testimony from those who actually saw/heard the events in dispute). It’s not that an attorney can’t do the latter (it’s done all the time), it’s that a PI can also present facts such as measurements, photographs, witness evaluation, background facts, data analysis, etc.

Having a PI present testimony also circumvents surprises such as a witness changing his/her story after they get on the stand. As far as not-so-common law practices that might need a PI’s services, here’s a few: water law, elder law, real estate and mining law, intellectual property and trademark infringement law, and cable TV piracy, to name a few.

Writer’s Question:¬†Is it illegal for a PI to have contact with a subject who has an attorney? Why? Is it harrassment? Also, if 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?

Guns, Gams, and Gumshoes Answer: The legal system has gone to great lengths to protect and enhance the institution and confidentiality of the lawyer-client relationship.¬† The reason that it is illegal for a PI who is working for Attorney A (and A’s client) to have contact with Attorney B’s client is this institution and confidentiality.

Why might an attorney be accountable for his/her PI contacting the client of an opposing attorney?¬† The legal idea behind this is simply that the boss is ultimately¬†responsible for the employee’s actions.¬† In states where PIs are licensed, it may indeed be the case that both the attorney and the PI would be punished for intruding on another attorney-client relationship (one needs to check if this is the case with that state’s PI licensing statutes or that state’s attorney’s code of professional responsibility).

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.

holmes

Posted in Writing About PIs | Tagged: , , , , , , | 3 Comments »

 
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