NACDL

Avoid Prejudging the Recorded Evidence

As lawyers begin to review the recorded evidence in undercover cases, the first mistake they often make is to assume that because there are secretly recorded conversations, those conversations must incriminate somebody of doing something illegal. The second mistake lawyers make is to read the government transcripts to find out how many ways their clients are guilty. Beginning the recorded evidence review with negative presumptions about its inevitably incriminating content is a road to nowhere.

Losing the mindset of a client’s accusers requires concentrating only on the client’s understanding of what was taking place as the conversations were being recorded. Law enforcement officials conduct sting operations under completely different rules of conversational interaction than ordinary informal conversation. Few jurors realize what total control of the target’s physical, psychological, and emotional environment occurs in an undercover operation. Until