occasions. 125 Would it be permissible to ask a defendant on crossexamination whether he had refused to take a lie detector or truth-serum test? Certainly, with both investigative techniques in their present fallible state, such a question would seem of very dubious propriety. The refusal to take the test may be the result not of consciousness of guilt, but, instead, of ignorance concerning the test's administration, distrust of the operator's ability or integrity, and, with truth serum, fear of possible physical or psychological aftermaths. Of course, it can be said that the defendant can explain to the jury his reasons for declining the test; but, on balance, probably the best course would be to prohibit this whole line of cross-examination. Even as to witnesses other than the defendant, it should certainly be within the discretion of the trial judge to prohibit such questioning in order to avoid getting too far from the main issues of a trial. A defendant may claim that he was deprived of a fair trial because he was denied the opportunity for a lie-detector or truth-serum testeither of himself or of certain witnesses. Certainly, the courts will be unwilling to accept such a claim until such tests have become more reliable; since the test results could not be used as evidence in most instances, the courts would hardly be willing to reverse a convictic? because of any refusal of the prosecution to give the tests. 128 Of course, as the accuracy of such investigative techniques increases, some legislatures may decide to require that they be used at the defendant's request in certain instances-regardless of whether the results would be directly admissible in evidence. However, without legislative action, the accused's chance of success is poor. Where the accused's mental condition is at issue, he might urge that the failure to provide for the testing of that condition by all available means, including narcoanalysis, deprived him of "due process” and even of his "right to counsel." As to requests to test prosecution witnesses, he might insist that, to have the full benefit of court process in securing evidence, at his request such witnesses should be scientifically tested; and that to deny such a demand deprived him of his rights as Compare Grunewald v. United States, 353 U.S. 391 (1957), with Raffel v. United States, 271 U.S. 494 (1926). See also 8 Wigmore, op. cit. supra note 11 § 135 2273. 1" Cf. People v. Porter, 136 Cal. App.2d 461; 288 P.2d 561 (1955); Commonwealth v. Dilworth, 179 Pa. Super. 64, 115 A.2d 865 (1955); State v. Perlin, 268 Wis. 529, 68 N.W.2d 32 (1955). Nor would a court grant a petition for a new trial based on lie-detector or truth-serum evidence. United States v. Bourchier, 5 U.S.C.M.A. 15, 17 C.M.R. 15 (1954). much as to refuse him court aid in subpoenaing witnesses. The tendency in recent years has been to put more and more of a burden on the government; 127 but-in part because of probable solicitude for the welfare of prospective witnesses-it seems doubtful that courts would accept the defense position on this point, even if satisfied of the infallibility of the lie detector or truth serum. In the event that a judge were willing to order that prospective witnesses be subjected to a truth-serum or polygraph test, what would be the validity of such an order? Not infrequently, this would involve a possible deprivation of the witness' own privilege against self-incrimination,128 although there might be some question as to the proper procedure by which the witness could vindicate his privilege.129 Sometimes the witness might have to resort ultimately to a criminal prosecution or a civil suit initiated against the persons who subjected him to the test against his will. Even apart from self-incrimination problems, a judge, as against proper objection, would probably be unwilling to force a witness to be examined under truth serum and, perhaps to a lesser extent, would hesitate to force submission to a lie-detector test. The only recourse, then, for the defendant would be the possibility of bringing out by cross-examination the witness' refusal to be tested.180 A defendant will often seek to bring to the jury's attention the circumstance that he volunteered for a lie-detector or truth-serum test. Actually, the volunteering may have been simply a last-ditch maneuver by a guilty man.181 At best, it is only an implied pretrial assertion of innocence and would be admissible in evidence only under circumstances when a prior consistent statement by a witness would be admissible.182 197 For a typical case, see Griffin v. Illinois, 351 U.S. 12 (1956). 138 Not only would there be the possibility that the witness might be incriminating himself as to the offense under investigation, but also as to some offense predicated on false information previouly furnished. 139 1 The witness, not being a party to the criminal proceeding against the accused, would have no standing to make a motion in the cause. On the other hand, he might seek an injunction, or a writ of prohibition, or mandamus, according to the procedure of the particular jurisdiction. If he were being held in custody to be tested, a writ of habeas corpus might be the appropriate relief. 130 See note 125 supra for some relevant authorities. There is probably more reason to permit such cross-examination of a witness than of a defendant, since with the defendant there is always the risk that a jury will "penalize" him for his refusal to cooperate with investigators by inferring guilt too readily. 11 This point is made in Highleyman, supra note 81; See also People v. Parrella, Cal.2d, 322 P.2d 83 (1958); Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956). 199 See 4 WIGMORE, op. cit. supra note 11, 88 1122-44. North Carolina is ap Even then, such evidence might properly be excluded in the court's discretion, on the ground that it would unduly distract and mislead the jury. VI ELECTRONIC EAVESDROPPING AND WIRE TAPPING The investigative measures discussed above bear rather directly on the person of the suspect. Electronic eavesdropping-especially through wire tapping-is a technique that ranges more widely. A survey of the cases reveals a frequent shifting of position by the courts with reference to such methods. In Olmstead v. United States,183 the Supreme Court held by a 5-4 majority that the tapping of telephones without a trespass on defendant's property did not involve a "search and seizure" and so did not fall within the fourth amendment. This decision is an important precedent for limiting the scope of the fourth amendment. Had the decision gone the opposite way, legislation to authorize any type of wire tapping would, in effect, have been permanently precluded. Even under a warrant, one cannot search for and seize mere "evidence," and in most instances, it would be difficult to deem telephone conversations either the "tools" or "fruit" of crime,134 Relying on the subsequently-enacted section 605 of the Communications Act, which forbids any person to "intercept and divulge" the contents of a telephone message without the consent of the sender, the Court later held that it was unlawful for federal investigators to tap and use in evidence a telephone conversation or information obtained from the wire tapping.135 Even intrastate calls were within this prohibition.188 Then the tide turned again. It was held permissible to utilize a detectaphone which overheard everything said by a suspect, including what he said into his telephone.137 A defendant was denied standing to parently more willing than most jurisdictions to allow corroboration by a prior consistent statement. 133 277 U.S. 438 (1928). 184 Supra note 23. 135 Nardone v. United States, 302 U.S. 379 (1937), following re-trial, id., 308 US. 338 (1939). 180 Weiss v. United States, 308 U.S. 321 (1939). 137 Goldman v. United States, 316 U.S. 129 (1942). Cf. On Lee v. United States, 343 U.S. 747 (1952), where an informer used a hidden microphone while talking to the defendant. 140 protest that investigators had obtained information through tapping someone else's wires.1 138 A state court was ruled to be free to use wiretap evidence, even though such evidence had been obtained in violation of a federal statute.139 In Irvine v. California the evidence revealed that investigators had entered the accused's house and installed a microphone. Under the principle that a state court can determine whether to consider illegally-obtained evidence, the Supreme Court ruled that the evidence was properly admitted. Nor was a deprivation of “due process" deemed to be present, since here the injury was not to the defendant's person, as in the Rochin case, but only to his privacy, because of the trespass and eavesdropping. Although it was explicitly proposed by two of the justices that there be federal prosecution of the investigators for violation of Irvine's constitutional rights, the other justices seemed unwilling to move so directly into the enforcement of protection against investigative excesses. 141 The Supreme Court, at its last term, handed down two more decisions on wire tapping. In one, it was ruled that for a police officer to listen in on a phone conversation with the consent of one of the participants did not constitute the "interception" proscribed by section 605.142 However, Benanti v. United States,148 has cast a pall on the wire tappers. In that case, cross-exan:ination of state investigators who were testifying for the prosecution revealed that they had acquired some of their information from wire tapping. The Supreme Court ruled that even though the illegality was that of state rather than federal officials, these investigators should not be allowed to divulge to a jury information which they had obtained in this matter. Although refusing to rule whether violation of section 605 requires both an interception and 100 Goldstein v. United States, 316 U.S. 114 (1942). 1** Schwartz v. Texas, 344 U.S. 199 (1952). Naturally, the Court in this case placed great emphasis on Wolf v. Colorado, 338 U.S. 25 (1949), where state courts were held to be free to use evidence obtained by illegal search and seizure. To avoid the effect of the Schwartz case, one defendant in a state court sought a federal court injunction, to be based on the Communications Act, which would enjoin the admission of wire-tap evidence and would require destruction of the recordings of his conversations. However, the requested relief was considered by the federal courts to involve undue interference with state criminal procedure. Voci v. Farkas, 144 F. Supp. 103 (E.D.Pa. 1956); Voci v. Storb, 235 F.2d 48 (3d Cir. 1956). If wiretapping by a federal officer had been involved, relief would probably have been forthcoming. Rea v. United States, 350 U.S. 214 (1956) (illegal search and seizure). divulgence of a telephone conversation, the Court held that the testimony by the state investigators would certainly constitute a violation of section 605. To permit the United States to prosecute a defendant with testimony the giving of which constituted a federal crime would, in the Supreme Court's eyes, not give sufficient weight to statutory policy. Another facet of the case is of interest. The investigators were wire tapping under the authority of a New York state court order entered pursuant to that state's constitution and statutes. However, in light of its conclusion that section 605 had pre-empted the field as to interception of telephonic communications, the Supreme Court concluded that New York had no power to authorize wire tapping. An interesting question now concerns the extent to which the laws of New York and of other states with wire-tap legislation will permit the use of wire-tap evidence in the courts of those states. 144 Will those courts continue to grant their police the authority to wire tap in the face of the Court's determination that state legislation providing for wire tapping invades an area pre-empted by the Federal Government through the Communications Act? In light of the unpopularity of the whole pre-emption doctrine in some states, this course of action is by no means impossible.145 In those states where, as at common law, the manner in which evidence is obtained does not affect its legality, it may be difficult to test this point, since the order for wire tapping is obtained ex parte in the first instance, and later, at any trial, it will be unnecessary to inquire into the legality of such an order. Even states which by statute or by judicial decision have departed from the common-law rule of admis sibility as to the products of an illegal search and seizure1 might hold that this departure was limited to searches and did not embrace wire tapping-which is not a "search and seizure."147 Of course, at some point, the Supreme Court might decide to intervene by overruling its 148 144 State legislation is summarized in Westin, The Wire-Tapping Problem, 52 COLUM. L. REV. 165, 181 (1952). Westin also discusses the New York experience under its legislation which authorizes wire tapping under court order. Id. at 192. The pre-emption doctrine, as reflected in cases such as Pennsylvania v. Nelson, 350 U.S. 497 (1956), and Amalgamated Association v. Wisconsin Employment Relations Board, 340 U.S. 383 (1951), was recently criticized severely by the Conference of Chief Justices at their August, 1958 meeting. See U.S. News and World Report, Oct. 3, 1958, pp. 92-102. 140 Supra note 10. 147 See Olmstead v. United States, 277 U.S. 438 (1928). |