As most defense counsel have experienced, the toughest evidence to overcome in a criminal case can be an incriminating recorded conversation. Eyewitnesses can often be impeached and although documents may “speak for themselves,” as we lawyers like to say, the fact remains that documents can often be interpreted in different ways. On the other hand, the spoken word — its tone, its context, the speaker’s attitude, and the actual words used during the course of a conversation with a colleague or friend — is powerful evidence in the eyes (and the ears) of a juror.
The U.S. Attorney’s Office for the Northern District of Illinois (NDIL-USAO) has for several years been a leader among U.S. Attorneys Offices nationwide in its use of wiretaps as an investigative tool. It has consistently outpaced larger federal districts such as the Southern District of New York (Manhattan), the Central District of California (Los Angeles), and the Southern District of Florida (Miami/Ft. Lauderdale) in the number of court-authorized wiretaps it has obtained. In fact, the Chicago and Rockford Offices of the NDIL-USAO consistently rank in the top three nationwide in their use of wiretaps.
More recently, State’s Attorney’s Offices in Illinois have begun using wiretaps with increasing frequency. According to statistics maintained by the Administrative Office of the U.S. Courts, in 2009, only one State’s Attorney’s Office in Illinois, the DuPage County State’s Attorney’s Office, obtained court authorization for a single wiretap. In 2010, that number jumped to 28 – 23 in Cook County and 5 in DuPage County. Last year, the number more than doubled to 57. The Cook County State’s Attorney’s Office obtained 39 wiretap authorizations, the Lake County State’s Attorney’s Office obtained 2, and the Winnebago County (Rockford) State’s Attorney’s Office, perhaps taking a page from the playbook of the other prosecutor in town, obtained 15 wiretap authorizations last year.
In light of all of the social media and other forms of electronic communication available, the clear trend is for these numbers to continue to increase. As a result, there will be an even higher premium placed on counsel’s ability to understand the intricacies of the wiretap laws and to develop effective responses to wiretap evidence.