I wish I had the free time to go round,and round, and round . . . but I
I think my answers have been responsive to your questions, and I do not
think there has been anything equivocal about them.
If pretexting bank records was clearly illegal prior to GLB, why do we have
GLB? The answer is, because it was not clearly illegal (See US v Mitchell
Miller), and still is not necessarily illegal as GLB provides specific
If pretexting bank records was not clearly illegal prior to GLB, buying
those records from an info broker would not have been clearly illegal even
assuming that the buyer knew how they were obtained.
Since info brokers closely guard their secrets, it's pretty hard to make the
case that the purchaser of these records knew how they were being obtained,
but as I said, absent clear guidance as to the legal issue, there was still no
criminal case to be made. In support of that assertion, I invite anyone to
point me to a case where someone was prosecuted for purchasing bank records
from an info broker prior to GLB.
That's why we have GLB.
Similarly, assuming that brokers illegally obtained telephone toll records,
the consumer who purchased phone toll records from a broker may not have had
any idea how they were obtained. There is a scienter requirement for most
criminal acts unless they are categorized as strict liability offenses - such as
statutory rape, or speeding.
As for the notion that evidence must be obtained legally to be admissible,
that is simply ridiculous. Laying the foundation for admission does not mean
one must prove that the documents were obtained legally. Obviously, the
evidence should have been obtained legally, but unlawfully obtained evidence is
For one thing, the rules are dramatically different for law enforcement
(government) and private parties. There is no general Exclusionary Rule
applicable to private parties, even in criminal cases. If I am burglarizing your
house and find your stash of pedophile vids where you taped yourself with
neighborhood kids, I can turn them over to the cops and you can bet your ass they
will be admissible - anyone who says otherwise obviously has no clue.
For another thing, the rules vary according to use. Evidence that may not
be admissible in the presentation of one's case, may very well be admissible
in impeachment. A statement unlawfully obtained by the cops is a prime
example. If you want to keep your mouth shut at trial, they may not be able to use
it, but if you take the stand and tell a profoundly different story, it may
very well come in.
Also, if I buy phone toll records from Joe Schmoe who assures me that they
were lawfully obtained from your trash, and it turns out that Schmoe got them
from your trash can as it sat by your house as opposed to curbside, I would
expect to be able to use them as evidence. You might have a sustainable civil
action against Schmoe, but it is up to the discretion of the Court as to
whether or not the evidence comes in, and absent wrongdoing on my part, I would
expect to use the evidence - the foundation being that I bought them from
Schmoe and Schmoe's testimony as to where he got them if the Court did not find
them to be self-authenticating.
Further, if the cops seek to introduce evidence in a criminal trial against
you in the form of phone toll records that were ostensibly lawfully obtained
from your criminal cohort's trash, and it turns out that they got them from
their trash can as it sat by their house as opposed to curbside, although
those records might well be excludable at trial against the cohort, I would
expect the evidence to be admissible AGAINST YOU as you have no standing to object
to the violation of a third party's rights.
In any event, private action or government prosecution, the Court may permit
the introduction of otherwise excludable evidence in rebuttal of perjury, or
when justice otherwise demands it.
I'll leave it to you to do your own research as I have a living to make.
Bill E. Branscum, Investigator
PO Box 10728
Naples, FL 34101
(239) 304-1640 Fax
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