OFF THE WIRE
The Patriot-News
Patriot-News Editorial Board
It makes no sense that evidence recorded by victims cannot be used in Pennsylvania courts.
A teenage girl, raped by her adopted father for years, thought she could finally end the abuse by recording one of the assaults and taking it to police.
After authorities in Montgomery County listened to the chilling recording in 2009, they had to tell the 16-year-old not only could they not use the audio of her being raped when they went to court, but she, in fact, had broken the state Wiretap Act by making the recording.
Fortunately, the teen’s testimony and DNA evidence later led to James Costello’s conviction, but others have not been so fortunate.
In Cumberland County, John and Traci Georgiadis and David Deck were alleged to have raped the young daughter of Deck’s girlfriend.
The teen secretly recorded a conversation with Deck where prosecutors say he confessed to the attack, but the audio recording was not allowed to be used in court. Prosecutors took the issue the whole way to the state Supreme Court with no success. The teen broke down on the stand unable to testify, and charges were dropped against the three.
Under the wiretap act in Pennsylvania, you are not allowed to secretly record someone else’s conversation. For example, a reporter must ask permission of someone he or she is interviewing before using a recording device in person or over the phone. In everyday circumstances, this makes sense.
But when law enforcement is dealing with sexual violence, drug trafficking, organized crime, hate groups and terrorism, the threshold should be different.
In these cases, the state wiretap act is outdated and in some ways obsolete given the new technology available today. Without making changes, the law, which has not been changed in 14 years, benefits criminals.
We don’t need to look far to see how it is used in other states. The case over a decade ago of a New Jersey teacher, carjacked and murdered, who secretly recorded her abduction and death was shocking and made national headlines. The recording was a key piece of evidence that led to the conviction of the woman’s assailant. In Pennsylvania, however, that recording would have violated the act and been inadmissible as evidence in court.
Pennsylvania lawmakers need to follow the lead of 38 other states and change the law to allow reliable audio recordings as evidence of a crime when they are made by victims.
Groups such as the ACLU worry that allowing the change will work against our state’s strong protections of people’s right to privacy.
This is a concern worth consideration, but allowing people to record a violent crime would not only give people the ability to provide evidence of their own victimization, but it could protect innocent suspects as well.
The act also does not reflect the fact that criminals, especially drug dealers, use multiple communications devices. Right now, law enforcement must get separate orders issued by a judge to cover each mobile device that a suspect has. This makes no sense, especially in an age of throwaway phones.
The other part of the act that needs to be changed is one to permit law enforcement to intercept and use recordings that individuals voluntarily send to devices legally obtained by police, including emails, text messages and voice mail. In a recent drug case, police had arrested the accomplice of an out-of-state drug trafficker.
With the accomplice’s permission, officers used his phone pretending to be him. The drug buyers unknowingly arranged a meeting with the police and were arrested. Later, the Superior Court said the police officer violated the wiretap law by using the accomplice’s phone and threw out the convictions.
Superior Court President Judge Correale Stevens said at the time that the wiretap act ignores the realities of technology and gives an advantage to criminals. He urged the General Assembly to make changes.
He is right. We shouldn’t allow criminals to get the upper hand just because technology changes. This sends the wrong message to those who break the law and more importantly to victims.