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Undercover Quarterly is a collection of articles intended to bring insights to both the public and the legal community about the practices, agendas, and purposes of undercover operations. We will also explore the political, commercial, and law enforcement objectives that guide or misguide them, in hopes that the study of the conduct of law enforcement agents and informants engaged in undercover investigations can bring clarity to the proper and improper applications of such methods.

Aside from the use of undercover operations to make criminal cases, we will also review clandestine practices of digital data gathering and communications collection with physical, electronic and Internet surveillance, since they are often intertwined with undercover operations in profiling and targeting individuals and in the infiltration of targeted groups. Our articles will also explore the relationship between surveillance technologies, forensic science, the law of search and seizure, privacy concerns, relevant legislation, and policy decisions.

Our many years of practical experience in the field has been devoted to the criminal defense of persons targeted and ultimately indicted as a result of undercover operations. Our analytical discipline in such cases has developed in the course of reviewing thousands of hours of undercover recordings and electronic surveillance. The first priority has always been objective research into the methods and language behaviors of the agents and informants revealed on law enforcement recordings as well as the words and actions of their targets. We are lifetime students of undercover operations, undercover techniques of incrimination, and clandestine agents’ methods and coordination.

The general public, the media, and our elected officials assume too much and think too little about the consequences of undercover practices and our vulnerability to their abuse. We do not appreciate the risks to our democracy that flow from over reliance on secret police and their informants engaging in covert roles inside our government, criminal justice, business enterprises, our places of worship, and legitimate political interest groups.  We welcome our readers to join in  this dialogue, either through the submission of articles or through their comments.

Sam Guiberson, Editor & Contributor, Undercover Quarterly

Waiter, There Really is a Drone in My Soup! The Coming Micro-Robotic Disruption of Personal Security and Privacy

 By Sam Guiberson

 

It has been said that generals always prepare to fight the last war. Our legal system has done those generals one better. American courts begin to deal with surveillance technologies only when newer technologies have obsolesced them.

The advent of surveillance drones is unlikely to break this pattern. Now moving from the battlefield to your backyard, automated robotic drones weighing up to 25 pounds have recently been approved by the FAA for low-level reconnaissance.  This approval is the first step towards the general use of surveillance drones by law enforcement at every level. The much larger consequences are coming our way just beyond this first generation of small drones.

 

The Expectation of No Privacy is a Self-Proving Hypothesis

In no way has American citizens’ privacy from aerial surveillance been protected by legal precedent. Since 1989, aircraft overflight of private property for law enforcement purposes has been constitutional (see Florida v. Riley, 488 U.S. 445). Satellites have been used for surveillance in criminal investigations since at least since 1983. The expectation of privacy that exists ever more marginally in longitude and latitude does not apply at any altitude.

Why does privacy have no vertical dimension? The Supreme Court’s analysis of when an expectation of privacy exists has set us on a path of parity between private overflight prerogatives and government surveillance. The logic of the ruling was that if privately owned helicopters would be expected to fly at 400 feet over a greenhouse, a police helicopter is not violating the owner’s privacy flying over that same greenhouse looking for traces of marijuana plants.  If the public expects that a technological platform could be used for private surveillance, the Court held that law enforcement surveillance employing the same technology will be permitted. This logic has guided aerial surveillance practices for over twenty years.

This reasoning tries to balance privacy and invasive technology on a false scale, setting the public perception of the ultimate capabilities of surveillance technology as a counterweight to how much of our privacy we must lose to accommodate it.  Whether the surveillance is conducted by a private or public entity is immaterial if privacy evaporates once there is an expectation of its absence.

There are many laws of nature, but the one immutable law of government surveillance is that every technology capable of a surveillance purpose will eventually be put to that surveillance purpose by government. Applying the tautological fait accompli inherent in the Riley analysis of the public’s privacy expectation assures that no emergent surveillance technology can offend the public’s expectation of privacy because we have come to expect that there will always be a newer technology surveilling us.

The coming generation of micro robotic surveillance tools will determine, with finality, whether our privacy is in a steady state or merely a state of flux in which privacy shrinks to whatever remains after the sum total of all the overt and opaque prerogatives of government surveillance have been subtracted from the calculation of what is private.

 

The Fading Restraint of Logistics

Piloted aircraft can remain over a surveillance target for only so long before the expenditure of human resources, fuel and mechanical wear and tear exceeds the value of the continued surveillance of a specific person or site. The practical rules of logistics enforce restraints on the scope and duration of surveillance that our laws do not.

Just as tailing a suspect in an unmarked car has manpower and equipment costs that limit the duration of its practical use more so than a GPS locator affixed to a vehicle’s undercarriage, so too do the efficiencies of unmanned drones have dramatically less impact on law enforcement’s fiscal limitations on engaging in 24/7 aerial surveillance. Given the same police resources, the more constant use of a more efficient surveillance technology is predictable.

The courts will see a drone’s wings, propeller and a camera and will analogize to surveillance aircraft – expensive to operate, highly specialized, limited use assets that are employed selectively. Drones have limited initial expense, and operating costs so low that, with solar power, they are likely to become an ubiquitous presence flying overhead in all but the smallest population centers. The functional dynamics of aircraft and drones as surveillance platforms are at opposite ends of the spectrum. Why should the legal precedent for manned surveillance overflight guide the introduction of flying robot drones into our local and national policing?

 

Surveillance in Society

What we think is a technological encroachment on our privacy is in fact a judicial one, stemming from a failure to recognize that privacy is not calculated against the specifications of a flying machine, but by anticipating the disruptive potential of its use.

The conventional concept of a personal expectation of privacy is so compromised because new technologies are analogized to previous technology thought to be comparable, rather than by assessing the potential risks of each new generation in the unique context of their deployment among an array of other complex surveillance technologies. What surveillance a satellite, an airplane, a helicopter or a drone can perform is not beyond our expectation of privacy merely because we know these machines are over our heads. Each technology has specific capabilities that frame the compromise of privacy that their law enforcement application will evoke.

Privacy, like technology, is an ecosystem. Its preservation or degradation is the consequence of interwoven and interdependent economic, technological, industrial and political progressions from the technological environment that existed before. For each new disruptive evolution of our advancing surveillance technologies, there is no such thing as stare decisis.

With other scientific advances, like biomedical engineering and pharmaceuticals, we understand that their benefits and companion risks of unknown consequences must be subject to rigorous clinical trials before they enter the mainstream of general use. We understand that biotechnology, medical and pharmaceutical advances have such an impact upon our collective well being that the public interest requires them to be subjected to a presumption of harm, absent scientific proof of benefit far outweighing risk. Comparing an airplane or a helicopter’s impact on privacy to that of a tiny drone is like approving a new drug because it is dispensed in a pill similar to the last drug approved.

With surveillance technologies, whether they are computing machines or flying machines, their introduction into the petri dish of our civil society causes a systemic response that changes far more than hardware. Lulled by the parade of evolutionary technologies of only marginal social impact, we seem unprepared to hold truly disruptive technologies to a higher standard of justification for their use as tools of police surveillance.

 

A Drone is a Drone is a Drone?

Drones are now at the same stage as cell phones were in the eighties, when phones were the size of bricks.  Thirty years of technological evolution has transformed cell phones from incidental luxuries into practical necessities. This transformation has made the cell phone networks an equally robust surveillance tool in 5 billion peoples’ pockets, subject to governments’ harvesting of network, cell tower, GPS and messaging data.

It was not the  invention of the cellphone that was the disruptive technology that altered our civic relationship to government intrusion. The disruptive event was the universal adoption of cell phones. It was the miniaturization and manufacturing techniques that could produce billions of phones at a price almost anyone anywhere could afford. It was the proliferation of cell technology that disrupted the existing patterns of global communications and changed the modality of their surveillance by governments. Cell phones  have become such powerful tools of surveillance, not because they are hand held telephones, but because they are in everyone’s hands.

While we debate the scope of police, corporate and personal use for drones the size of model airplanes, the next evolution of micro-robotic drones the size of large insects is almost upon us. As with every previous generation of disruptive technology, the equilibrium of normative practices and legal standards will again be shaken and adjusted to a new normal. The cultural and privacy consequences that will result from micro robotic drones will produce much greater civil instability than the first wave of airborne police drones.

Micro drones, mass-produced for less than the price of an iPhone, would universalize surveillance, making everybody somebody’s Big Brother. A miniature surveillance drone can land in a tree, on a windowsill, follow a target into a building, circulate in an office or follow your children from your home to soccer practice, video capture and facially ID who you meet with, or patiently conceal itself on a curtain rod in your bedroom. The miniaturization cycle will continue from the  bird sized drones of today to butterfly sized drones tomorrow.

While government may have micro-drones first, the massive global economic forces that push tens of millions of cell phone purchases every month will drive sales of personal consumer drones that will be as equally helpful to you watching your kids as they are helpful to the police  watching you. Anyone could own one micro-drone or a dozen micro-drones and operate them in anonymity.  The radio control points for these tiny drones would be traceable  only after a considerable time airborne. Rapidly switching radio frequencies would allow longer interims without detection. A fleet of police drones could be programmed to assemble like a school of fish to conduct intense surveillance of an event like an outdoor political rally or protest march. Transmissions from a smart phone controller could be encrypted, so that a drone’s innocent intentions would be indistinguishable from less innocent ones.

Although visualized only as a surveillance device, a miniature drone could also be used as a weapon, with guidance to its target by an operator standing a few yards away or a few thousand miles away, similar to the guidance systems of Predator drones in Afghanistan, Pakistan and along the U.S.-Mexico border.

With arguments of life saving exigent circumstances overwhelming arguments against the domestic weaponization of drones, it wont be long before miniature ballistic munitions evolve, allowing the tiny robo-butterfly drones to be armed with a needle-sized arrow with a neurotoxic or explosive tip. What legislator or jurist would argue with police that stopping a terrorist or an armed robber holding hostages with a miniature drone would be illegal, when lives hang in the balance? Miniature drones could become a much more effective weapon for assassination or police action than any sniper.

An anecdotal law enforcement application of an intrusive surveillance technology in a worst case scenario tends to justify its pervasive and unrestricted deployment in a thousand other much less exigent circumstances. Routine general use of essentially invisible snooping drones in great numbers will radically debase any remnant of personal freedom from constant government surveillance.

To secure personal privacy in the future, if you are wealthy enough to purchase any, will require a pocket sized personal air defense system to fend off or confuse miniature drones bearing all seeing eyeballs, deadly force, or both. Apprehensions about surveillance over flight will give way to anxieties about surveillance under flight, where tiny drone aircraft can loiter, listen to, visually monitor, or eliminate you from an altitude below your ankles 50 yards away. The quaint notion that we can ever be assuredly alone with our thoughts, our family, our friends or our politics will go up in a cloud of drones.

Anonymity of use, coupled with universal accessibility, is a drones’ world in which human aggression has little deterrence, whether the aggression is military or merely around the clock Orwellian surveillance. While we bemoan the asymmetry of government power and individual privacy today – imagine the future prospect for personal security and privacy when government, corporate and personal surveillance devices transition from micro to mini to nano scale technologies.

Aerial surveillance has been with us for several decades, but the public has not yet felt violated by the compromise of even that comparably small degree of privacy surrendered. As long as ownership of the latest technology compels a sacrifice of our individual privacy, the public will gladly exchange today’s technology for a loss of privacy tomorrow.

 

The Personal, Proprietary Presumption of Privacy

We proudly own our technology, but we no longer proudly own our privacy. It is our lack of ownership that has granted government and the corporations our collective consent to make us subject to an omnipresent surveillance apparatus. We have all indulged in willful ignorance as we were enveloped in a digital conglomeration of consumer items re-purposed into a network of dystopian surveillance systems. The global surveillance state to which we have acquiesced is capable of absolute awareness of every digital document we produce, our every public action, and every communication we offer or receive.

A citizen may trust his government with his or her secrets either with indifference or out of a sense of duty, but the compromise of privacy without meaningful choice to a multiplex of government, corporate and private covert surveillance networks is a diminished freedom without cause.  From the shopping mall video camera to the campus police drone, it is important to take into account that all private and corporate surveillance is ultimately the State’s surveillance.

To establish privacy as a citizen’s rightful domain rather than as an incidental privilege awarded at the State’s discretion, we must forge a legal mechanism of restraint before the open ended exploitation of covert police surveillance technologies irrevocably disrupts the balance between the governments knowledge of its people’s actions and the people’s knowledge of how the government acts. The legal standards we have applied to date have only favored the emergence of a national surveillance industry in which our collective privacies are but commodities and our willing acceptance of their surveillance its commerce.

There is some leverage to be found against these forces in the principle of the presumptive intrusiveness of drone surveillance. That principle is embraced in Senator Rand Paul’s June 12th, 2012 legislative proposal to require a warrant for drone surveillance of civilians. His “Preserving Freedom from Unwarranted Surveillance Act of 2012” would require court sanction of all drone use except for the patrol of national borders and where there is an imminent danger to life or a high risk of terrorist attack. This legislation would preclude omnipresent drone surveillance, except in these delineated circumstances. The alternative calculation of privacy it offers is that freedom from aerial drone surveillance is presumptively protected. The adoption of this Act and others like it would encourage a reexamination of all surveillance technologies from a similar perspective. If our freedom from drone surveillance were recognized by the courts as a presumption, overcome only by warrant, judicial and legislative limitation of surveillance technologies might become the rule and not the exception.

A reformed judicial and legislative litmus test for the law enforcement application of a surveillance technology is not based on how a new technology compares to the expectation of privacy we settled for in the past, but what impact will it have upon us if we truly expect to keep our privacy. The loss of ownership of our privacy must be reversed, for no better reason than the certain knowledge that whoever is entirely watched is entirely captive.

 

 

Sam Guiberson advises and assists other defense attorneys in cases involving undercover operations, electronic surveillance and recorded evidence. For more information about his work, see www.guiberson.com or email sam@guiberson.com

 

Uncovering Defenses in Undercover Recordings

by Sam Guiberson

Avoid Prejudging the Recorded Evidence

As lawyers begin to review the recorded evidence in undercover cases, the first mistake they often make is to assume that because there are secretly recorded conversations, those conversations must incriminate somebody of something. The second mistake of lawyers who make that first mistake is to pick up the government transcripts and read them to find out how many ways their clients are guilty. Beginning the recorded evidence review with negative presumptions about its inevitably incriminating content is a road to nowhere.

Losing the mindset of your client’s accusers requires concentrating only on the client’s understanding of what was taking place as the conversations were being recorded. Sting operations are conducted under completely different rules of conversational interaction than ordinary informal conversation.  Few jurors realize what total control of the target’s physical, psychological and emotional environment occurs in an undercover operation. Until the mind numbing and meticulous work of identifying all the intricate means of control and manipulation that define undercover practices is done, there is only one perspective that gives context to the words recorded, the indictment of your client. 

Following the narrative of the defendant’s state of mind through the course of multiple undercover encounters is critical because it provides an alternative context for the conversations that the jury can understand and validate in the recorded evidence. The more thorough the analysis, the more effective the defense advocacy can become, building a case from a catalog of the linguistic and psychological techniques of incrimination brought to bear against the client.

The client’s words may well be his own, but presenting the influence his accusers exert in his choice of words helps the jury distinguish between the client’s independent conduct and the undercover operation’s efforts to conform the recorded conversation to its own conviction agenda. Absent the counterpoint of the client’s subjective internal experience in the course of his contacts with the undercover operatives, juries can’t filter the evidentiary value of the recorded evidence in any context but the prosecution’s.

The defense is on a more even playing field as soon as the jury understands  there is no such thing as a spontaneous undercover conversation that would have occurred just as it did, even if it were not being recorded. When trial becomes the examination of two distinct sets of behaviors, the agents’ and the client’s, the jury can see an undercover operation for what it is,  a set of purposeful interactions controlling the client, each phrase part of a pre-planned conversational agenda constructed to satisfy the operational mandate to incriminate.

To convey what it was like for the defendant to be swimming like a goldfish in a fishbowl of a skillfully deployed undercover operation, the defense will have to get the jury wet. If the jury is encouraged to immerse itself in the calculated patterns of inducement, subterfuge and seduction that define the undercover method, the probative weight of the recorded evidence is up for grabs between the prosecution and the defense. 

 

A Stream of Words Sewn Together

The starting point in evaluating recorded evidence is to analyze the recordings as a stream of continuing conversation, not as separate ones. No taped conversation is an island. The interludes between recordings, whether hours or days, are as significant as the recorded encounters themselves.  It is in the intervals between undercover sessions that agents measure the yield of evidence they consider incriminating to recast the ongoing operation to resolve any incomplete undercover agendas. The next recordings will then mirror those shifts in operational focus. Successfully connecting undercover conversational patterns in one conversation with those in others establishes that these manipulations are neither inadvertent nor inconsequential.

Co-opting the prosecution’s recorded evidence requires the construction of a detailed and complex narrative of the defendant’s progression through a series of calculated exchanges.  Every conversational exchange must be analyzed and noted as part of a progression of planned transitions initiated by the undercover agents. This narrative account must demonstrate both the strategic orchestration of the agents’ words and the client’s narrow window for response within the tightly controlled covert operation that envelops him.  The defense must weave together the audio evidence with the document discovery to explain the disconnect between agents’ assumptions about the client’s criminal acts and the client’s innocent intentions. The defense must articulate how investigative subterfuge and innocent purpose coexist throughout a string of recorded conversations.

 

Using the Recorded Evidence to Defend

However the prosecution chooses to deliver undercover recordings in discovery, the audio files and transcripts are in no shape to be employed as the keystone of the defense. They must be reorganized to reflect defense objectives instead of prosecution objectives.

The prosecution of an undercover case relies upon definitive singularities of self-incrimination. Prosecutors think of them as quick steps to convictions, what I’ve described in the past as “smoking verbs.” For prosecutors, an undercover case is a trap that the defendant falls into, documenting a crime in progress. This approach to the recorded evidence stems from the traditional purpose for using audio recordings in law enforcement – to overcome disputes in testimony as to how a transaction took place, typically a drug purchase, a solicitation of prostitution, or bribery., The ostensible value of recorded evidence to law enforcement has been that, unlike witness testimony, it cannot be impeached.

Major undercover operations today rely upon sophisticated covert scenarios that feature highly orchestrated encounters with their targets. Undercover agents and informants are now no longer just microphone packing bystanders to others’ criminal initiatives, but criminally enterprising provocateurs. Undercover investigative methods have evolved into elaborate plainclothes theater events designed to capture a target’s tightly controlled responses in a dialogue scripted at every turn to compromise the soon to be defendant. The objective of undercover operations has become to capture verbal exchanges that can only be adjudicated as criminal within the parallel universe of the undercover pretext du jour.

Even though the law enforcement roles in undercover operations have become much more assertive and proactive, the recorded tape or digital audio file remains an objective record. The conversations recorded are now more of an impressionist canvas than a photograph of a crime in progress. As soon as more than a few words are exchanged, the ambiguous, conflicting and often chaotic subjective interpretations of what each participant’s words actually mean begins to control the probative value of what the recorder captures so reliably.

 

Charting the Depths of Conversations

To demonstrate the consistent logic of a defense oriented interpretation of the recorded conversations, the defense team must isolate every notable element of the acoustic, linguistic and emotional content found in each and every recorded exchange. The defense workup must also integrate into that timeline any other discovery documents that address the recorded content. There is no credibility in a defense narrative that does not embrace the totality of both the recorded and the documentary evidence.

To begin reviewing undercover discovery, prepare an inventory of all document, digital and recorded discovery that have any bearing on the content of the undercover conversations.  All discovery that conveys the states of mind of agents, informants and the client before, during and after every recorded communication, from preliminary investigation to arrest is material, whether found on a recording or not. What is said about the recorded conversations is as important as the recordings.

Include anything that confirms or refutes recorded statements made during the undercover investigation, such as agent reports containing information about the defendant’s activities that were predicate to the undercover operation, reports about the conduct and timing of the operation, cell records and any accounts or byproducts of physical or electronic surveillance conducted during the course of the operation. All sorts of data points can provide background for the conversational gymnastics undercover agents perform to introduce and then exploit specific subject matter during undercover conversations.

Agents and informants typically insinuate their information from other investigative sources into the recorded conversations to obtain corroboration or to evoke a more prejudicial statement.  Illustrating the backroom game being played behind the scenes to orchestrate every word spoken to the defendant is key to highlighting the asymmetric balance of power that exists between a large and well-resourced undercover team and its civilian target. Because the recorded conversations with the defendant are designed to produce an incriminating result, each seemingly spontaneous subject of conversation is intended to fulfill a specific objective in the process of incrimination.

By outlining every technique used by undercover operatives to manage, control and shape the defendant’s recorded responses, the jury is steered away from hearing the recorded evidence as a series of spontaneous events which the government attends with only a microphone.

There is Always More to Discover in the Discovery

Before starting the long process of classifying the recorded conversational statements of both the undercover agents and the client, investigate all of the non-verbal content found in the recordings. Listen for any inconsistencies in the surrounding sounds that suggest a break in recording. With today’s digital audio files, there are no physical traces of an edit or of a convenient interruption in recording.  Digital audio analysts must rely exclusively on the continuity of background sounds and foreground speech to detect tampering. Remember that in a defense based on the content of the recordings, the defendant has an equal stake in the integrity of the recorded evidence.

Defense investigation of the nonverbal content of audio evidence goes well beyond whether the recording is authentic. Recordings capture so much more than words. There is also a wealth of acoustic information that may be of use to the defense. Listen to the recordings without transcripts, as if inspecting a crime scene, searching for every audible detail beneath and between the words being spoken. Follow the sounds that are clues to the movements and spatial relationships of everyone whose voices are heard on the recording.

Listen carefully for noises that reveal actions, such as the opening or shutting of a drawer or the closing of a door. There have been cases in which the audible opening and shutting of a desk drawer corroborated a defendant’s account over an informant’s. In one case, the sounds of a door closing established that the informant’s highly prejudicial words were spoken outside of the presence of the defendant. Such barely discernible acoustic details can become powerful evidence.

Tracing Emotional Content for Persuasive Impact

Tracing recorded behaviors that evoke emotion is best done early on in the recorded evidence review cycle, before the focus of defense efforts shifts to analyzing words on a page rather than voices on an audio. Before reading the transcripts and interpreting the recorded language with your own metrics of advantage or disadvantage to the defense, simply experience your initial feelings, just as the jury will their own.  By noting and reflecting on your own impressions and the impressions of others on the defense team, the hotspots in dialogue that evoke negative or positive emotions about your client or his accusers can be taken into account.

Record the time signatures and a brief description of what emotions or impressions the conversation evoked at various stages of the recordings so that the lawyers’ working transcripts reflect the emotional content that isn’t available from the written word. The emotional tones we all hear in spoken language influence juries’ inferences about the motives and intentions of the prosecution witnesses and the defendant. Without knowing where in the recordings those moments occur, the defense is in no position to exploit or deflect them.

 

Finding the High Ground in the Transcripts

While the relative inaccuracy of the prosecution transcriptions may limit its understanding of the recorded evidence, it need not be a limit for the defense. When the strategy is to make the defendant’s case from the recorded evidence, it is your client’s interest that will suffer from any shortfall in the accuracy of the transcripts the defense presents.

Auditing the prosecution’s transcripts while listening to the companion audio file will identify what recorded material has been selected for transcription by the prosecution and what has not. Creating a list of these transcribing exclusions, whether only short passages or entire conversations, informs the defense of what conversations the prosecution thinks extraneous to its case. Those untranscribed recordings and any partially transcribed recordings may well include the unknown material that is useful to the defense. At best, they may contain information useful to the defense that the prosecutors failed to transcribe, rendering them helpless to anticipate its use. At the least, the defense knows that there is nothing harmful if it were to be transcribed at a later date by the prosecution.

A superior set of transcripts can provide the defense a distinct advantage. Having the “high ground” in the most complete transcription allows the defense to work its advocacy with more confidence about the subtle details of the conversations, a distinct advantage when the evidentiary angels and devils are most often found in the barely intelligible recorded passages. When skeptical jurors confirm with their own ears that the defense transcripts are more precise than the prosecution’s, defense arguments made from those transcripts gain more credibility.

Although a transcript may be unnecessary as an aid to understanding what is said in a recorded conversation, it is indispensable to the detailed analysis needed to cross-examine a prosecution witness with the recording. Once the defense is armed with a truly complete map of every word uttered into the government’s mikes, a detailed deconstruction of the topics, conversational behaviors and emotional control patterns can begin.

 

Deconstruct Undercover Conversations to Construct a Defense

It is counterproductive to cherry-pick the sequence of review by starting with recordings thought to be more or less incriminating. Whatever words are exchanged on a single recording, their meaning and context are drawn from all previous communications and are subject to amendment in subsequent exchanges. No conversation exists in a vacuum. No undercover tape among many is intrinsically self-explanatory. The recorded evidence must be reviewed in the chronological sequence in which it was produced to follow its narrative development, the shared references brought forward from previous conversations and the evolution in the patterns of conversational topics from one exchange to the next.

There are three categories of review that are basic to the exploitation of undercover recordings as evidence for the defense. These tactical choices are evidence that agents steer the course of a recorded conversation towards its predetermined strategic objectives. To make this argument, the defense must track all the language effects, topic effects and psychological effects in the conversations

 

Language Effects

Language effects are the means by which ordinary rules and conventions of conversation are exploited to shape a conversation into evidence of a crime. The linguistic methods of the undercover operative include controlling the introduction of new topics, the repetition or recycling of similar subject matter from past recorded or unrecorded meetings, conditioning the target to be responsive to agent’s conversational initiatives at the expense of his own and making word choices that to frame the recorded dialog in the most toxic terminology possible for future jury consumption. By organizing and then demonstrating the obvious patterns of undercover behavior, the defense can teach the jury about a covert agent’s practices in an undercover operation.  Then they can hear for themselves how his verbal interplay with the defendant is organized to arouse, sustain and reinforce the most prejudicial insinuations of criminal purpose, no matter how slight the client’s engagement in those objectives.

Who dominates a conversation is important to track because it is a sign of the intent to control the agenda of a conversation and to inflate the recorded discussion with more topics of the dominant speaker’s choosing. Simple courtesy or respectful deference to an elder or a business or social superior will allow the undercover agent to build a bonfire of inflammatory rhetoric intended to prejudice the ultimate consumer of the undercover recording, the jury.

Other conversational ploys include interruption of the target and sudden topic changes to avoid a defendant’s disavowing statements from reaching the recording.  The defense accentuates the uneven playing field by offering objective evidence that spontaneous exculpatory statements by the target were actively suppressed.

Purposefully vague phrasing is often employed by undercover operatives to leave ambiguity in a recorded conversation that can later be characterized as more prejudicial than were the literal words alone.  Conversation in an undercover meeting can often become so devoid of specifics that parallel conversations occur. A parallel conversation is one in which the parties continue to converse without recognizing that each has a different understanding of the words being used between them.  In everyday conversations, these misunderstandings are typically resolved within a sentence or two. In an undercover conversation, with an agent or informant being purposefully ambiguous, a parallel conversation can continue for much longer, creating a false impression of mutual agreement.

Over a series of recordings, the agent’s perception of how successful or unsuccessful he has been in meeting his undercover goals becomes evident from the topics he chooses to introduce again and again into the recorded conversations. Returning again to the same subject matter has twin purposes. If the recycled topic has been agreed to or resolved in a way consistent with the undercover agent’s objective to incriminate, then it will be repeated for the prejudice of multiple reinforcement. When the undercover operative recycles a topic for the target to agree or disagree, the topic recycling implies that the conversations to date have not produced the desired results.  Repeated recycling to obtain more satisfactory affirmations contradicts any prosecution assertions that the prerequisites for criminal prosecution have already been achieved. Even law enforcement officers cannot say they have caught a fish unless the fish takes the bait.

 

Topic Effects

Undercover conversations go through topic stages from the beginning of the operation until the end, with each stage intended to stair-step the defendant through a series of trust and bonding exercises, to explore the number and identities of like minded conspirators and to set out the predicate agreements or actions that must verify the progress of the target toward commission of an offense. At the end, the undercover agent will lead the client into that consummate recorded moment of closure during which a theatrically overblown arrest extravaganza occurs, possibly featuring special ops police, armored to their eyeballs, waving stubby machine guns, rushing into an office to neutralize the national security threat of an accounting fraud.

Patterns in the undercover agent’s choice of topics of conversation in meetings and recorded telephone calls are a virtual roadmap of the operation’s objectives. Conversation by conversation, supervising agents will script the undercover operative’s verbal overtures to calculate the optimal subject matter for the next recorded meeting. In making those adjustments to the conversational agenda for each successive encounter, the recordings provide a real-time window to the agents’ ongoing assessment of their progress in the undercover operation. When their own words clumsily mischaracterize or manipulate, or their words on tape belie the fact that their objectives have not been fulfilled by the client’s responses, the recorded evidence is beneficial to the defense.

Following how targets respond to specific topics can be very nuanced. Did the client respond deferentially or with a redirection? Was the client response either a tentative or qualified agreement? Was the defendant driven by undisclosed feelings or assumptions about his words’ purpose? Was the target compelled by fear or intimidation to conform to the undercover agent’s requests? Are repeated overtures for the same agreement made? Are threats implied? Is a hesitance voiced by the target, only to be overcome by rough insistence, derogatory statements from the undercover agent or with an offer in compromise?  What topic initiation and response patterns emerge from the words of the agent and how are they distinct from those of the target? Are the undercover methods open to either the inculpation or exculpation of the target? Are there points in the operation when the target seems to falter under the weight or momentum of the plan and do the agents rally their rhetoric to restore the defendant’s further participation? Were the topics of unrecorded conversations mirrored by recital or reference in subsequent recordings? Juries must be made aware of all notable linguistic subterfuges so that they may balance the client’s degree of culpability against the undercover operatives’ ingratiation and encouragements.

 

Psychological Effects

Aside from conversational patterns, the psychological impact of the agent’s well chosen words are also important to note. To maintain their target’s “mission focus” within the narrow boundaries of the operation, agents will use staged anger to achieve agreement, or invoke God’s plan or make a desperate appeal to the target’s loyalty to family, nationality, tribe or church in support of the undercover agenda. To insulate the target from outside influence, undercover operatives will deny the target access to any friends or advisors who express doubts about the agent’s actions. When a target expresses fear or doubt, undercover agents do not hesitate to question his courage or manhood, or withdraw their supposed friendship and admiration from the target who has become emotionally or financially dependent.   

         Undercover roles and particular undercover personnel are often chosen to maximize the operation’s psychological influence over the target. An agent will pose as a desirable customer, as a mob connected businessman, as a friend of someone who the target respects, fears or owes a debt, or perhaps as just a wily Al Qaeda lieutenant, any role that will subordinate the target to the character role assumed by the agent. Older male agents may befriend younger targets to act as their business or spiritual mentors or as strong male role models or father figures.

Undercover agents exploit whatever emotional neediness they find in their targets. They often hunt the damaged stragglers in a controversial political group or choose easy targets, such as troubled people from a dysfunctional family or who are mentally challenged in some way. They will exploit financial compromise or any other hardship that would cause targets to overcome their inhibitions or conscience and go beyond their comfort zone to avoid the loss of the emotional support provided by the false persona of the undercover operative. An agent will act as an adoring admirer of his target, expressing adulation for the courage or insights of an insecure and unaccomplished individual to emotionally addict that target to the undercover agent’s direction.

Subtle psychological manipulations are not always plainly verbalized in the recordings, but they are equally powerful psychological manipulations that render an unsuspecting target more vulnerable to undercover entanglement than he would otherwise be. Much is made of a defendant’s predisposition. More needs to be made of law enforcement’s.

 

Advocacy in an Undercover Case

Advocating for the defense in the recorded evidence requires counsel to present a thematic cross examination of the undercover informant or agent using excerpts from the recorded conversations, focusing on their own choices of words and behaviors as well as the demonstrable patterns of manipulation and opportunistic exploitation. The defense purpose is not to ask for an explanation of the statement from the witness, but for an acknowledgement that it is present in the recorded conversation. Defense counsel can then combine such acknowledged statements to demonstrate for the jury that there is a scheme employed in the undercover conversations to exaggerate the collaboration and willful engagement of the defendant.

The defense must present example after example of undercover behaviors that demonstrate orchestrated patterns of conversational, topical and psychological compromise being leveraged together to falsely incriminate the defendant. The defendant’s behavior must also be mapped from the start date of his encounters with operatives until the arrest has occurred, in order to evaluate what actions were of the defendant’s own instigation and which were not.

Observations of agent conduct and its influence upon the defendant’s behaviors are not grasped intuitively by juries. They must be presented by the defense for what they are, strokes on a canvas that, when taken together, illustrate a very different conclusion about how the recorded conversations should be weighed as evidence. The defense advantage is not in any one agent action or suggestion, but in the overwhelming weight and number of persistent patterns of control and mischaracterizations of the defendant’s words and actions.  Only when the whole body of an undercover operation is dissected to expose the prejudicial sum of its parts will the recorded evidence become the best evidence for the defense.  Only then can the true voice of the defendant be heard. 

 

Sam Guiberson advises and assists other defense attorneys in cases involving undercover operations, electronic surveillance and recorded evidence.  For more information about his work, see www.guiberson.com or email sam@guiberson.com

Cold, Coons or Punks: The Selective Perception of Recorded Speech

by Sam Guiberson

 

In the news coverage of Trayvon Martin’s death, a 911 recording of George Zimmerman has taken center stage. Advocates for Zimmerman’s claim of self defense, as well as advocates for his prosecution, have embraced this recording as certifiable evidence of their assertions about the actions and reactions of these two individuals during their encounter on that ill-fated night.

As the days of coverage have progressed, this 911 recording has been replayed over and over again on cable news and repeatedly enhanced by forensic audio experts. News commentators, lawyers, family proxies, and even experts have heard different words in the very same utterance on tape. This case presents one more learning experience about the neurological phenomenon we know as “hearing.”

What the ear feeds the brain to digest is a well-cooked meal that satisfies our hunger to communicate with each other almost all of the time. When hearing deficiencies, or a lack of ample or unambiguous audial cues get stirred up in the physics, neuroscience and psychology of why we hear what we hear, the routine reliability of communicating  with speech evaporates. When the easy consensus of what many ears hear as the same word is lost in the selective perceptions of individual listeners struggling to decide what word they think they hear, the tape recordings many proclaim as unassailably objective evidence become as subjective as your favorite color.

My personal experience with the transcription of thousands of hours of recorded evidence has taught me that there is no such thing as universal, objective comprehension of language. At the remote edges of marginally intelligible speech, where the brain fails at matching  a pattern of sonic information against a standard set of sound-to-language translations, our regular and mostly successful means of recognizing words is abandoned for more creative processes .

If the brain can’t attach a word to the sound drawn from its audial “muscle memory” of what words match what sounds, it begins to apply assumptions based on recollections from similar past experiences with language, contextual cues from contemporaneous conversation and our own individual expectations of what we think we should be hearing. In other words, we try to define experientially what we cannot define acoustically.  Our own present and past experience is our brain’s last resort in its desperate effort to decrypt ambiguous aural input. Individual perceptions that have little to do with what sonic impulses move through the ear canals ultimately decide what we think we hear.

We have all encountered such a phenomena with the elderly. When someone is hard of hearing misinterprets our words and substitutes other phrases for what we clearly said, we laugh at the disparity. When “I’ve got pilates class” is heard by a confused listener as “I’ve got potato gas,” we know that this listener took in less sound information than we communicated.

The minds of both the able and the impaired listener are functioning in exactly the same way, but because the latter is working with much less information to associate sounds with words, the impaired listener will have  to compensate with higher risk, and more likely inaccurate, associations to the most similar words they imagine might fit into the context of the conversation at that time. We construct an interpretation of an obscure spoken word by choosing to hear that word as what we most likely expected to hear, or what we have heard in similar situations in the past.

Since the invention of voice recording and the admission of tape recorded speech as evidence in courts, hard to hear recordings have become a more  challenging forensic issue less respectfully acknowledged and less well understood than the infirmities of the hard of hearing.

Microphones are dumb listeners. They only present the sounds they record without understanding what is more or less important to hear. The unpredictable and chaotic acoustic environments in which covert audio recordings are produced are not filtered into a hierarchy of minimum or maximum attention by a microphone as they are by a person engaged in conversation. When we converse with each other in a loud and distracting place, we automatically give less attention to the ambient noise around us, such as back ground noises and people speaking over one another. Because our brains have evolved into much more sophisticated instruments for  speech processing than microphones, humans can isolate the vocal range of sounds and selectively hear what is speech that is important to us rather than the random sounds that are not.

By presenting everything without selective perception, without contemporaneous contextual assessment of the reason for listening, i.e. to hear words, the recorded conversation is less stimulating and less dimensional than if we had experienced that same conversation personally. The concealed location of a microphone, low voice levels, intrusive background noises and poorly enunciated words can also diminish our ability to capture the less intelligible recorded language.

It is also a cruel trick of nature that the most important language evidence is often found in the most problematic zones of marginal intelligibility. When it comes to juries evaluating the probative value of words spoken on recorded evidence, the devil is in the details, often located deep down in the most obscure facets of a recorded conversation.

Everyone listening to the coverage of the Trayvon Martin case is a juror of sorts, trying to assess Mr. Zimmerman’s motives and behaviors and how they might have contributed to the fatal outcome. Once the 911 tape was available to the news outlets, the coverage began to focus on the cries for help that advocates for Zimmerman and Martin have each identified as being the voice of their man crying out for help. Because the passage on the 911 recording doesn’t include language content, the dispute turns upon the quantifiable dissimilarities in the distinct sonic profiles of each of their two voices. If their voices are dissimilar enough in range and pitch, the issue is settled in a scientific framework that is less disputable than the accurate recognition of recorded speech.

In the ensuing days of coverage, the focus turned to an under the breath utterance of George Zimmerman. On MSNBC, Larry O’Donnell announced that he could clearly hear the word “coons” being spoken in the version of the recording he aired. A lawyer for the Martin family agreed, other guests were equally sure or equally uncertain. Abruptly, the Martin’s attorney backtracked, indicating that the “coons” word was clearly heard on a tape that was not the same as what was just played and the scandal over Mr. Zimmerman’s words was mired in the uncertain provenance of the recording that lent itself most definitively to that damning interpretation.

This presents another fissure in the bedrock of certainty in evaluating recorded language evidence. The perception of what words are spoken can vary with the characteristics of a duplicate version of a recording and with what audio technology we choose to hear it. The technical properties of the playback equipment used, or even the bass, treble and mid-range biases of the speakers or headphones we use to listen can influence what we can hear when we are operating at the fringes of intelligibility. When dealing with obscure audio content, the media can definitely affect the message.

Playing defense in the 24/7 news cycle, Mr. Zimmerman’s spokespeople offered a distinctly different interpretation of that word uttered in that 911 call, one with a less prejudicial take. The word in question wasn’t “coons,” but “punks.” Soon thereafter, different forensic enhancements gave us both an endorsement of “punks” and a fresh alternative, “cold”. These words are not particularly similar, and yet even after enhancement using sophisticated forensic audio technology, the experts are hearing completely different words spoken in but a single second of sound.

When forensic audio technicians shape voice audio to render it more unnatural sounding, they do so for the purpose of making the spoken phrases more discernible, but the distortion has its own effect on the brain’s analytical process. The manipulated audio introduces tonal variations that can either reveal or obscure the sounds we need to recognize a word.

Listen to two different forensic renderings looping repetitions of the single enhanced word (mp4 format):

OWEN LOOPED ENHANCEMENT      STONE LOOPED ENHANCEMENT

These enhancements produce different experiences for the listener. In the Owen enhancement, there is a sharper edge to the tone that is not as severe in the Brian Stone enhancement. When recorded speech is as aggressively modified as it is here, it may lead us away from accurate interpretation precisely because it steals away the tonal information about the pronunciation of vowels and consonants that our brains depend upon.

In the Owen enhancement, the resonant quality of the long “O” sound is flattened to approach an “ooh” sound that lends false credence to solving the word as “coon.” Mr. Owen is quoted in news reports as hearing “punk,” a choice that also depends on the absence of a long “O” vowel.

One way we can try to escape our selective perception and our intuitive process for recognizing obscure language on tape is to trick the brain into avoiding interpreting words at all. When we isolate the task to recognizing only phonetic units, we can eliminate the more complex engagement with the brain’s contextual processes of resolving what words are being spoken. These steps reduce the word identification process to simply identifying what individual sounds make up the word, and then deducing what the word can or cannot be from the sequence of sounds we identify as letters in the alphabet.

Each competing option for the word in question has four enunciations from the alphabet, known as “phonemes.” For “cold” to be validated, we must identify, in sequence, a /k/ sound for a hard “C”, a long “O”, an “L” sound and a brief closing “D” sound. For “punk” to prevail, we must hear, again in sequence, a “P” /p/, a soft “U”, an “N” sound and a closing “K” sound, a /k/. “Coons” would require an opening /k/, a soft and extended “O”, an “N” sound and a closing “S.” Since “punks”, coons, and “cold” all have only one syllable, syllabic stress is not a factor as it might be if our competing alternatives were “canyon” and “Cancun.” In the clips below, I have slowed down the progression of sounds on each of the two enhanced versions using identical settings in order to offer more experience with the phonemes that enunciate the word in question.

SLOW OWEN ENHANCEMENT     SLOW STONE ENHANCEMENT

The Owen enhancement seems to infer a closing “S” even more overtly in the slowed version while the slow Stone enhancement seems to more likely arrive at a closing “D.” How can we explain the contrasts other than by the manner of the enhancement? A 911 tape isn’t governed by quantum physics – two distinct sounds cannot occupy the same place in a phoneme sequence at the same time.

On the three audio clips below, I have isolated and substantially slowed down the brief intervals in which each phoneme in the sequence must occur. The third and fourth are so brief that they must be heard together to make sense of them. If we can successfully identify the four sounds, or at least the ones that exclude the other phonemes, the correct interpretation of the word between the choices should become apparent. There is a little overlap in the phonemes to orient the listener.

Phoneme 1   Phoneme 2   Phonemes 3 & 4

All four phonemes don’t have to be definitive for us to rate one solution over the others as the most probable right choice. If the phoneme sequence begins, or ends, with a hard “C”, a /k/ sound, the more likely choices between the alternatives “punk” and “coons” or “cold” becomes apparent. In other words, no “P”, no “punks.” If the second phoneme is “O” or a “U” sound, another outcome is equally favored, since “Coons” doesn’t have a long “O” as does “cold.”

After listening, it is evident that the word in question begins with a  /k/ sound, a hard “C”. Most of the sound energy in the waveform is devoted to enunciating that /k/ sound. The long “O” sound is also apparent. So far, the word sounds like “coe.” This is where the sonic train comes off the tracks. The next phoneme of the two contiguous ones that run together is likely to be an “N” followed by… an “S” sound. What certainly never sounded like an ending “K”, and has flip flopped between sounding like an “S” or a “D”, depending on which enhancement one relied on, now sounds more like an “S”. Before the excerpt was isolated, it sounded more like a “D”.

Is it possible that Zimmerman committed a speech performance error when he said the word “coons” mispronouncing a long “O”? Is it possible that another phrase, “f’ing codes” is in play, and the “N” sound we register is just a poorly enunciated “D”? Could it be “f’ing cones?.” Is the method of analysis influencing our perception of the results of the experiment? Traveling from the macro to the micro scales of audio analysis, we find ourselves still questioning what we are hearing.

Our scientific knowledge has taken us to the moon and to the extreme depths of the ocean, but it cannot remove all doubt about a single spoken word. Language can be that complicated, less about certain outcomes and more about the elusively subjective human perceptions of what is heard.

 

Sam Guiberson advises and consults with other defense attorneys in cases involving undercover operations, electronic surveillance and recorded evidence.                         For more information about his work, see www.guiberson.com or email sam@guiberson.com