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Can Defense Attorneys use Illegally Obtained Evidence in the defense of their client's innocence in a criminal case?

Palo Alto, CA |

My brother in law is being charged with a felony. The testimony of one of the victims, my sister believed, amounted to Perjury. The Victim faked injuries. The victim testified in Prelim she could not walk or drive a car since the incident. The next day without her husband's knowledge, my sister went to the witness' house and video taped the alleged victim walking on the street and driving herself to a drug store and a bank, proving the victim's testimony the day before was perjury. Can this evidence be used to defend her husband? She video taped from the street. She did not trespass on the witness' property. She believes she is covered by "Inevitable Discovery" in that the witness would have been likely discovered in their lie eventually ie- Church, Social Clubs, etc.

Attorney Answers 6


  1. Does not sound like the evidence was illegally obtained. Is there any audio, or just video? Audio may be the one thing that causes you a problem, but if there is no audio, it sounds like it was legally obtained and therefore usable.

    John S. Riordan, Esq., RIORDAN & HERMAN, PL., West Palm Beach, FL, (561) 650-8291. Mr. Riordan is a former Palm Beach County Prosecutor and an experienced criminal defense lawyer handling cases in both State and Federal Courts throughout Florida. The answer provided is for educational purposes only. It does not constitute legal advice or create an attorney-client relationship. You should consult an attorney for legal advice regarding the facts of your specific case and designed to help you with your personal needs.


  2. You should turn thsi eveidence over to your brother -in laws attorney. They will know how to use it.


  3. There's nothing illegal about videotaping someone in public. Inevitable discovery? Whoever went there is way off base.


  4. As far as I know, even if the video footage was illegally obtained (by trespassing onto the alleged victim's property), it would still be admissible at trial. The question seems to revolve around Fourth Amendment search and seizure law, but keep in mind that the Fourth Amendment only applies when the evidence is being introduced by the government.

    The footage would presumably be admissible to impeach the alleged victim's testimony.


  5. Under those facts, it would appear the tape was not illegally obtained, and even if it was, it is probably still admissible. You should turn it over to your brother in law's attorney. They will know how to proceed.

    SLG Criminal Law Group
    515 South Flower Street
    36th Floor
    Los Angeles, CA 90071
    213-236-3660


  6. I don't believe this is illegally obtained evidence. In fact, insurance companies regularly employ investigators to video tape people claiming injuries to prove that either the injuries are a lie, or are not as bad as alleged. This type of evidence is admitted in civil trials all the time, and should be in a criminal proceeding as well. I agree with the others that this should be handed over to your brother-in-law's attorney, who will handle it accordingly. I say kudos for getting the footage.

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