The Catholic University of America

CUA Law professor Clifford S. Fishman offered his insights on Procedure, Evidence, and Electronic Surveillance when he was interviewed on May 19. Fishman was then quoted in an article published in Bloomberg BNA about the wife of ex-Gallon Group LLC trader Craig Drimal suing FBI Agents over wiretapping of Marital Phone Calls. See below. 
 

Ex-Galleon Trader’s Wife Can Sue FBI Agents
Again Over Wiretapping Marital Phone Calls

From: Bloomber BNA - Criminal Law Reporter & U.S. Law Week
Date: May 27, 2015
Author: Jeffrey D. Koelemay with assistance from Hugh B. Kaplan and Erik Larson

... 

Two-Minute Rule’s Purpose. ‘‘The ‘two-minute rule’ is useful where the agents are not yet certain as to who is who,’’ or ‘‘it is not yet clear whether a husband and wife (or any other people who have a communication privilege) are engaged in criminal conduct with each other,’’ Professor Clifford S. Fishman, of the Catholic University of America’s Columbus Law School, Washington, told Bloomberg BNA May 19.

But it ‘‘should not be a set-in-concrete license to listen to every call for two minutes regardless of circumstances,’’ Fishman said.

‘‘At some point it becomes unreasonable to listen to a particular category of conversations at all,’’ if they are ‘‘not within the scope of communications that the court order authorizes the agents to monitor,’’ Fishman said. 

... 

Spot-Checking Calls. On the other hand, Fishman said the ‘‘pattern of innocence rule’’ shouldn’t be applied ‘‘with absolute rigidity, either.’’ 

Even ‘‘invariably personal and non-pertinent’’ calls can be intercepted ‘‘under unusual circumstances,’’ Fishman said.

If it’s clear from other, non-privileged conversations that a crime is planned for the immediate future, agents may check in on an otherwise privileged call ‘‘because it is reasonable to believe that the suspect may reveal important information about his expected activities or whereabouts later that night,’’ he said.

... 

 

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Clifford S. Fishman  

Professor Clifford S. Fishman's
Areas of Expertise

Criminal Law, Procedure, and Evidence

Electronic Surveillance

Privacy

For additional information about our professors' areas of speciality, see the Catholic University Experts page.