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Disclosure of Defendant and Attorney Overhearings with Respect to Electronic Communications

Disclosure of Defendant and Attorney Overhearings with Respect to Electronic Communications

An overhearing is when an individual believes that another has illegally overheard their communication. When a defendant believes that he has been illegally overheard, he may file a motion alleging that an unlawful act of electronic surveillance has been conducted. The defendant may request the disclosure of the electronic communication. The federal government may request that the trial court require the defendant to provide specific information regarding the disclosure of the electronic surveillance. The defendant may be required to provide the following information:

  • biographical information
  • specific time and place that the illegal surveillance occurred
  • any other relevant information with respect to the disclosure of the electronic communication.

Attorney Overhearings

Overhearings of the defendant's counsel or staff may involve a violation of the Sixth Amendment to the United States Constitution. The defendant's Sixth Amendment right is not implicated unless the conversation or information overheard directly related to or was relevant to the attorney's representation of the defendant. If an illegal overhearing has occurred, the federal government is required to inform the trial court of the overhearing. Further, the federal government is precluded from using that information in the defendant's criminal trial.

If the attorney makes an assertion that an overhearing has occurred, the attorney may be required to produce and submit an affidavit to the trial court regarding the overhearing. The affidavit should include the following information:

  • specific time and date of the incident
  • identity of the person that the attorney was conversing with at the time the electronic surveillance was conducted
  • facts showing a nexus between the electronic surveillance conducted and the attorney claiming that the violation occurred.

After the attorney has filed the affidavit, the federal government must either affirm or deny the allegations. It is within the trial court's discretion to accept or reject the attorney's contentions set forth in his affidavit. The trial court may also conduct a hearing with respect to the allegations and may take testimony regarding the alleged illegal overhearing.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.

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