required to amend as soon as there is probable cause for new parties. I might add that the process of amending and dealing with the courts is extremely time consuming, extremely intricate. When you are involved in a wide-ranging electronic surveillance, you could come across numerous parties. For that reason, while the requirement should be added, it should be flexibly applied. The next area involving the scope of electronic surveillance deals with the so-called minimization requirement. Specifically the statute requires that the surveillance be conducted in a way that minimizes the interception of nonpertinent conversations. In fact, that requirement has not been effectively applied by the courts. The courts typically have been applying the minimization guidelines that have developed very liberally, without really carefully analyzing whether, in the context of a particular case, minimization could have been achieved. Second, in the Supreme Court's Scott decision a few years ago, the Court said that minimization violations are going to be evaluated objectively rather than subjectively, meaning that the good or bad faith of the law enforcement officials attempting to minimize is not considered in evaluating whether a violation has occurred. That aspect of the statute was probably mistakenly interpreted by the court. In any event, it should be changed. We should clearly be encouraging agents conducting surveillance to be acting in good faith. And I might add that this is usually the case. I have seen Federal and State agents being instructed by prosecutors on how electronic surveillance is to be conducted and they are told to be conducting it in good faith. They are further told, from my own experience, that, should they at any time exercise bad faith, they will, in fact, be removed from the wire. Furthermore, on occasion, if there is bad faith resulting in a violation, it would not be unusual for a prosecutor to make that fact known to the court in his progress report. The next area of concern has to do with amendments for new crimes. The statute presently has, in effect, what is a plain view section; should evidence of a new crime come into plain view, prosecutors are required to amend the warrant retroactively by filing an amendment before the court indicating that evidence of new crime has been detected. The courts have, however, not applied that section of the statute very carefully. Prosecutors are required to amend under the statute as soon as practicable. In fact, they typically have not done that. In candor, that is sometimes a difficult thing to achieve since it is not always clear when you have probable cause to believe that a conversation pertains to a new crime. Some courts have interpreted the amendment requirement with undue rigidity, however. They have gone to the other extreme. For example, there are situations in which a conversation happens to pertain both to a crime specified in the warrant and to a new crime. The same conversation, in other words, is probative both of a crime mentioned in the warrant and some other crime. Under those circumstances, no purpose is served by requiring an amendment. It is silly. It is time consuming. For example, assume you are in a wire for robbery and a conversation is intercepted in which the very same words pertain both to 1 robbery and kidnaping. Since that conversation pertains to the original crime specified in the warrant, there is no plain view consideration that comes into effect, and, therefore, no benefit to be obtained by requiring law enforcement to seek a retroactive amendment under those circumstances. The next area of major concern should be the area of progress à reports. In fact, as a general rule, the courts are not carefully evaluating progress reports. Consequently, you have potential for surveillance being approved initially based upon probable cause, however 2 or 3 weeks into the wire there is no evidence that is incriminating, nevertheless either because no progress report has been filed, or because the report has not been properly evaluated, the judge may not be aware of the fact that probable cause, in effect, has dissipated. The statute should be amended to require mandatory progress reports, either once a week or once every 2 weeks, in which prosecutors are required essentially to set forth what has been achieved so far. In other words, do we still have probable cause for the surveillance? Furthermore, if we have achieved a sufficient number of incriminating conversations, perhaps our investigative objective has been attained, and accordingly, there is no longer a need for continued surveillance. Mandatory progress reports would also achieve the purpose of dealing with how evidence of new crimes should be handled by law enforcement. As soon as there is probable cause to believe a conversation pertains to a new crime, the progress report requirement should be one that compels that the new crimes be specified therein. And finally, progress reports can be useful to the judge in evaluating whether minimization has been properly implemented by law enforcement. The present statute is one that only provides for optional progress reports. As a reform, title III should make them mandato ry. Next, the area of sealing. Much has been said about the sealing of tapes. The statute requires that the tapes be sealed at the end of the surveillance period, immediately upon the expiration thereof. Sealing, however, is very silly stuff. There is no magic to a seal. A seal is simply a piece of Scotch tape that you put around the tape. People originally were concerned about tape recordings being tampered with. If someone has the sophistication to tamper with a tape recording-and that is very much open to question-but if someone has the sophistication to do that, he certainly has the sophistication to take off the Scotch tape and replace it with another piece of Scotch tape. Therefore, what I would suggest is complete elimination of the sealing requirement. Law enforcement already has to establish the accuracy of the tapes as a prerequisite to their admissibility. However, should there be concern and for some reason you decide to retain the sealing requirement, it should probably be changed from the language presently used in the statute. As I said, presently law enforcement has to turn over the tapes to he judge for sealing at the end of the surveillance period. The sureillance period usually is 30 days. That gives, in theory, 30 days or someone to forge the tape. So I would suggest that the sealing equirement be changed to 72 hours after the tape has been used. "hat gives law enforcement plenty of time to process the tape as it must and at the same time gives the litigants involved and the people under surveillance adequate protection. Mr. Chairman, I would rely upon the remarks I have made in my formal statement to supplement the remainder of my testimony. I realize that we are pressed for time. One final comment is in order. If you are going to make title III more comprehensive, more complex, and I believe the statute should be reformed, we will all benefit by that. At the same time, I don't think that the original balance between law enforcement and fourth amendment rights should be modified. I would also recommend that should the Supreme Court adopt the good faith exception to the suppression rule for fourth amendment violations, that the good faith exception likewise be included in the statute. I very much appreciate your time today. Thank you. Mr. KASTENMEIER. Thank you, Professor Goldsmith. [The statement of Mr. Goldsmith follows:] Thank you for inviting me to testify before the House Judiciary (DRAFT) A Statement for the Reform of Federal Eavesdropping Legislation By Professor Michael Goldsmith Bolds nut. I would like to thank the Judiciary Committee of the United States House of Representatives for inviting me to express my views on the subject of electronic surveillance. Presently, I am an assistant professor, on leave from Vanderbilt Law School, serving as Counsel to the New York State Organized Crime Task Force. My testimony today however, represents my views alone rather than those of any institution. My understanding is that the Committee would like me further to develop aspects of an article that I recently authored entitled The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance, 74 J. Crim. L. & Criminology 1 (1983). More specifically, I have been asked to provide suggestions for reforming Title III, the federal law which governs the use of nonconsensual electronic surveillance in this country. Given the thesis of my article that the Supreme Court has, in effect, rewritten Title III through a series of decisions which deviated from the Court's original guidelines for the enactment of a constitutional eavesdropping statute is certainly appropriate. - - legislative review of this issue Significantly, previous efforts at legislative reform, such as S. 1630 introduced before the 97th Congress, sought to effect significant improvements, but failed to realize the extent to which Title III has been modified by decisional law. Accordingly, this statement will set forth a series of proposals for reform of Title III. For the most part, these proposals were either explicitly or implicitly made in my article. Since I cannot hope to duplicate in this statement the detailed analysis contained in a 171 |