The Admissibility of Electronic Surveillance Evidence in NJ Prosecutions

Posted about 5 years ago. Applies to New Jersey, 1 helpful vote

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1

Was the Device Used to Record the Communication Capable of Making the Recording?

In essence, this factor examines whether the equipment used was in fact recording communications transmitted over the targeted facilities. (For example, over the targeted telephone designated in the Electronic Surveillance Order). Potential points that should be examined include: whether the State has established that the records of the service provider indicate that the designated facility in the Court Order was in fact the facility through which the recorded communication was intercepted. Additional issues that are examined include: whether the actual recording device was functioning properly, and a determination that the device was actually recording the communications.

2

Was the Operator of the Device Competent to Operate the Device?

This factor requires that the State establish that the person making the connections that permitted the seizure of the communications had the proper knowledge, experience and training to insure that the equipment used was actually connected to the targeted facility; and, was in fact capable of accurately recording the communications. It also involves an examination of whether the operator properly monitored, and minimized, the communications per the Court's Order and the investigative protocol in effect at the time that the communication was seized.

3

Does the Recording Accurately Reflect the Communication?

The basic inquiry in regards to this factor is whether the recording is authentic and correct. Stated alternatively, does the recording accurately reflect the actual communication. Was it recorded in it's entirety? As an aide to determining this issue, and at trial, the State frequently prepares transcripts of the recordings, which are used as an aide to understanding the spoken word or other form of communication. Obviously, while the recording itself is the actual evidence the jury will be told to consider, an accurate transcript will often be an invaluable tool to help the jury understand the context of the communication. A check must be made of the accuracy of the transcript by direct comparison to the actual recording.

4

Has the Integrity of the Recording Been Preserved?

By statute, the original communication must be sealed by the Court following the copying of the recording for investigative purposes. Once sealed, the original communication can only be unsealed by Court Order. Typically, given the current technology of digital recording devices, the only time when the original recording would be unsealed is where there is an assertion that the copy contains additions, alterations or deletions of the recording that must be compared to the original recording. Given the equipment in common use in NJ, this type of challenge would require the use of experts specialized in the examination of digital recordings.

Additional Resources

NJ Criminal Defence Center

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