For the Defense - Vol. 4, Issue 2 - 15

that the Commonwealth obtained the contents of
the conversation through an independent source-
the "voluntary disclosures to the CI" and the CI's
disclosure of the "information...which happened
to also be recorded."45 To hold otherwise, the court
reasoned, would effectively "prohibit the use of...
confidential informants and undercover agents"
because the CI could not "repeat the words said
to him absent prior judicial approval of the entry
into the [defendant's] home."46 Thus, even if the
recording is suppressed or excluded, the other party
to the conversation can testify to the recording's
contents-admissible under Pennsylvania Rule of
Evidence 803(5) as an opposing party's statement.
This holding seems to be in tension with the
Wiretap Act's use of the term "contents," defined
as "any information concerning the substance,
purport, or meaning of that communication,"
which cannot be disclosed absent strict compliance
with the Wiretap Act and is the proper subject
of a motion to exclude.47 It also risks allowing
the independent source doctrine to vitiate the
Wiretap Act's restrictions, as every consensual
recording necessarily has a party that can testify
to the conversation's contents. Recognizing these
concerns, the Pennsylvania Supreme Court has
taken up this issue, and will decide whether the
Superior Court's decision "renders meaningless [the
Pennsylvania Supreme] Court's definition of the
Independent Source Doctrine."49

Conclusion

that Singer's recordings likely would be admissible
as they appear to comply with the single party
consent exception to the Pennsylvania Wiretap
Act.
Practitioners and their clients would benefit
from understanding that:
* Pennsylvania is a dual-party consent state for
recording conversations that are expected to
remain confidential and private.
* Practitioners should caution clients that
recording devices are ubiquitous and to be
careful when discussing sensitive subjects.
* Consent of a confidential informant
or cooperating witness alone can be
sufficient to comply with the Wiretap Act's
requirements.
* If a CI's recording is made in the defendant's
home, a prior court order and probable
determination are required.
* Lawful recordings can be introduced in
criminal, disciplinary, or enforcement
proceedings, but not in ordinary civil cases.
* Improperly-obtained recordings can be
suppressed but as to derivative evidence,
the independent source rule (whose scope
is unclear) and inevitable discovery rule can
lessen the effectiveness of this remedy.
The breadth of the Singer investigation serves
as a cautionary reminder to practitioners and
clients alike that conversations that are believed to
be private, even if never reduced to writing, may
still see the light of day and make their way to law
enforcement.
PANTONE

2955C

Were the college admissions bribery and
entrance exam cheating scandal prosecuted in
Pennsylvania state court, rather than federal court
where admissibility is governed by the federal
Electronic Communication Privacy Act,50 it appears

7406C

CMYK

90/78/39/30

9/22/91/0

RGB

22/58/92

234/194/56

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full notes section for this article.
HEXIDECIMAL

#153A5B

#EAC137

About the Author
Carolyn H. Kendall is an attorney in Post & Schell, P.C.'s Internal
Investigations & White Collar Defense Practice Group in Philadelphia. She
conducts internal investigations and defends corporations, officers, and
other individuals facing criminal and civil investigation. Ms. Kendall can be
reached at ckendall@postschell.com.

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