The rationale offered by Congress for requiring immediate sealing of wiretapping tapes by the court upon the completion of the interception period is to preserve the integrity of the tapes by preventing any tape tampering, alteration, editing, or other governmental bad faith. Congress, however, also added an exception to the sealing requirement that permits disclosure of the tapes' contents in a judicial proceeding if the government has contravened the sealing requirement yet has offered a satisfactory explanation for either a failure to seal or a delay in sealing. No circuit court treats sealing requirement violations in a manner that effects the congressional purpose underlying the sealing requirement. Congress desired to provide an external safeguard against tampering with or manipulating recorded evidence. To preserve this safeguard and the integrity of intercepted communications, courts should interpret section 2518(8)(a) strictly and require a satisfactory explanation for any sealing delay beyond one or two days. Moreover, for purposes of invoking the exception, the court only should deem an explanation satisfactory if the cause for the delay during the initial days of the surveillance is unforeseeable and beyond the government's control. The courts, furthermore, should place an affirmative obligation on the government to show by a preponderance of the evidence that the government preserved the integrity of the tapes during the delay. Because the government initially instituted the electronic surveillance, the court should shift the burden of proof to the government. If the government satisfies these conditions to explain the sealing delay, then the court should not suppress the tapes for mere technical violation of the sealing requirement. Alternatively, the court should suppress the evidence if the government does not satisfy the necessary preconditions explaining the sealing delay.
Thomas C. Banks,
Use of Surveillance Evidence Under Title III,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol36/iss2/3