Operation Wordscam:
How Uncle Sam Listens With an Open Mouth
Samuel A. Guiberson
The National Law Journal, September 27, 1982
Criminal Law
Agents wired for sound are inclined to bring the evidence to a boil by being
verbal activists. But, there has been little critical assessment of the methods
used, and questions need to be answered.
WHEN THE PUBLIC hears of electronic
surveillance performed by federal agents, they first think of the ingenuity
involved in sneaking tape recorders and transmitters into hidden places where
illicit goings-on are within earshot. We assume that our "G-men" are silent
witnesses to criminal conversations that, but for concealed tape recorders,
would go undiscovered but not unspoken.
Judging from what I have found in over a dozen criminal
prosecutions involving tape-recorded evidence obtained in 'consensual' undercover
operations, Uncle Sam is not so much a listening ear as he is an open mouth.
The words being recorded on tape in most undercover investigations are more
a by-product of the techniques used by the agents involved, than the spontaneous
statements of those being investigated.
In the current free-for-all legal environment of undercover
sting operations such as Abscam, agents wired for sound are inclined to bring
the tape evidence to a boil a little quicker by being verbal activists. We find
that recording agents and informants are introducing into tape-recorded conversation
those topics, phrases and ambiguous statements that will be considered most
incriminating when played.
These tricks of the tapers' trade are encountered frequently
in unrelated investigations in different parts of the country; so often, in
fact, that it is apparent that their use has become essential to those who make
up the elite audio videotape posse now forming in the law enforcement community.
When the hardware of undercover recorders has been heralded
for its technological sophistication, this equally sophisticated "software,"
the programming of conversations by recording agents, has been generally overlooked.
These techniques of incrimination have produced recorded evidence without any
critical assessment of the methods used. Yet, serious questions do emerge, especially
about the extent to which a recording agent's aggressive manipulation of a conversation
compromises the integrity of the evidence, and undermines legitimate law enforcement
objectives.
Only from a systematic review of the recorded evidence
generated by scores of undercover sting operations does one get a sense of the
hierarchy of techniques being employed by agents in the field. These evolving
methods range from subtle turns of phrase to more comprehensive and legally
questionable manipulations of the recording process that impair a jury's capacity
to evaluate the evidence.
WORDS ARE BOTH a means of manipulation as well
as a means of communication. The target of an undercover operation is participating
in a conversation, hearing what is said, and responding to it. But the agent
or informant is participating in a conversation with one ear on the dialogue
and an eye on the courtroom. The targeted individual's orientation is the present
conversation, but the recording agent's orientation is the future use of what
he is able to record.
What this means is that the parties are playing by different
sets of rules. The targeted individual is engaged in ordinary conversation in
which all the normal rules and customs apply. The agent's rule of thumb is to
say anything that will maximize the criminal implications of the conversation.
All too often, if the targeted individual won't put his foot in his mouth, the
agent will do it for him.
Any good salesman, whether he is selling vacuum cleaners
or convictions, knows it is important to keep his customer involved in the conversation.
Two techniques are frequently used by recording agents to dominate the conversation:
flooding the recording with the agent's words rather than his target's words,
and selecting the topics that are brought out in the course of the verbal exchange.
If the agent is able to control the agenda of the conversation, he is essentially
able to write his own evidence on tape. If he does not gain control of the conversation,
the agent cannot narrow his target's recorded remarks to the objective of his
investigation.
In order to obtain a response, it is the agent who will
state the proposition and then encourage his target to respond by the use of
a tag question such as, "I bet we could work something out with the gambling
commission, don't you?" or, "it is possible to influence people, right?" or,
"let's
see if we can get the congressman going on this, okay?"
The "rights" and "okays" in these examples are known
in linguistics as "tag questions." A party solicits minimal response to a preceding
statement. The party responding accepts the offer as a matter of conversational
habit without necessarily intending to affirm or to adopt as correct any of
the implications of the question.
The brief affirmative response is very much a part of
our conversational habits, especially when another person continues to talk
at length. We all find ourselves responding with an "uh huh" or a "yeah"
as other people talk to us. This is known as "place holding," whereby we acknowledge
the continuing conversation of the other party without necessarily adopting
or approving the particular implications of the statement.
Yet, when reduced to a transcript form, a simple "uh
huh" or a "yeah" is read as having a more emphatic and affirmative quality than
existed in the actual conversation. Eliciting simple affirmative responses while
the agent carries the burden of the discussion is a technique which produces
a recording, and a transcript of that recording, that a jury may misinterpret, holding
the defendant accountable for statements made by the agent.
LINGUISTIC devices are used just as effectively
to keep things off the tape recording and out of a transcript as they are to
get words onto the tape. The foremost method is to use interruption as a means
of defeating any exculpatory conversation initiated by the target when the agent
senses that a qualification or renunciation is imminent.
Another common practice is the "voicing of acts."
This
simply means that the agent states what is happening, if it would otherwise
be unapparent to the listener. When money is changing hands, the agent will
voice the counting process by saying "one, two, three, four," etc.
In the investigation of county commissioners in Oklahoma,
agents got their targets to repeat to themselves out loud "5000, 6000, 7000."
In another case, the agent used clean ironic ruse to explain why she counted
aloud. Posing as the friend of a female client, the agent came to pay a retainer
in a lawyer's office explaining that the client "told me to make sure and count
it all out so you'd know everything was all right."
The voicing of otherwise inaudible transactions might
be understood as good police work, an attempt to make the most of the
limitations
of the audio-tape medium. Every police department cannot afford its own Abscam
videotape setup. But as a technique of incrimination, voicing goes beyond speaking
physical acts.
Voicing of acts moves up a level of manipulation to what
is called "loading." This is defined as the injection of particular
words--paraphrasing summarizations of past events into a recorded conversation for the sole purpose
of shaping the recorded evidence to suit the needs of the investigation.
The
purpose of loading is to insert as much incriminating information as possible
onto the tape in order to manipulate the jury's ultimate retention of facts,
and their ability to discriminate between what the defendant said and what the
undercover agents contributed.
Recording agents want to take advantage of what is known
in linguistics as the "contamination principle." Contamination means that a
listener or a reader exposed to a sufficient quantity of information will confuse
the source of the information. As the information increases in quantity, the
listener's ability to discriminate, to identify the origins of that information
in conversation is diminished to the point that every member of the conversation
is assumed to have provided that information and used that language. Contamination
can be a matter as simple as the choice of words that a jury will ultimately
attribute to a defendant rather than to the undercover agent.
In one case, every DEA agent and informant within earshot
of the tape was shouting obscenities except the defendant, who never uttered
an obscene syllable. If there is a juror who believes that the criminal element
swears a lot, the DEA agents should have been the ones to stand trial. As this
example demonstrates, unless the trial attorney isolates the language of the
agents and informants from the language of his client, the contamination principle
will operate in the mind of the juror to place someone else's words, in this
instance the vulgarity, in the mouth of the defendant.
TAKING an example from the Cullen Davis case,
one of the two parties to a conversation used the following terms:
-
"If he grabs that judge up and puts him in his car
and knocks him out and puts him in his car and takes him off."
-
"Left that son-of-a-bitch bleeding in his driveway."
-
"Walk in the house and blow up the judge."
-
"The possibility of blowing up that motor home with
butane."
-
"May just waste the shit out of a bunch of
'em."
-
"Get a bunch of it over with at once."
One would think that the person doing the talking might
be the one accused of wanting to murder somebody. But that was the informant
with the tape recorder talking, not the defendant accused of soliciting capital
murder.
Another technique of incrimination is to load one recorded
conversation with many references to preceding unrecorded conversations that
the government intends to argue were of the same character as the one being
recorded. An agent will invite a target to describe off-tape transactions with
questions like "do you remember when you told me something good was going to
happen?" or, "didn't you say you were going to be able to get Billy Bob off if
I paid you $5,000?" Calculated amnesia also has its uses: "I forgot what we
said the day before yesterday about the money. Did you want $5,000?"
Allowing a target to corroborate prior events and unrecorded
conversations is one technique of developing otherwise unsubstantiated evidence.
An experienced tape agent knows how impossible it will be for the juror listening
to many hours of tape-recorded evidence to sort out who introduced the actual
topics, who responded to what, who the speaker was referring to, or what events
were known or unknown to persons in conversations occurring over many months
in time.
The worst-case example of contamination is one in which
an informant, in a conversation with one individual, reports a prior conversation
with another individual in a way that is distinctly more incriminating than
the conversation was when it originally occurred. The recording agents are entirely
aware that the jury cannot possibly recognize the distortion of a prior recorded
statement that is later summarized and retold by the recording agent.
It is obviously impossible for a defendant to protect
himself from tape-recorded misrepresentations of his conversations that are
stated into a tape recorder by an agent in conversation with someone else.
In
this way, agents and informants can shape recorded evidence to incorporate unrecorded
prior conversations, to reconstitute and interpret prior conversations, and to
pad the tape evidence with descriptions of conversations that never took place.
IT WOULD seem that
ambiguous remarks, questions, or statements by an agent would not ordinarily
serve the agent's purpose to specify and to identify conversation about crime.
Yet, in some of the more complex scam-type tape operations, ambiguity allows
the recording agent to attach a criminal connotation to otherwise innocuous
statements.
An example would be a question like "I'm glad you can
help us to get the congressman going on this." When the recording agent testifies
about the meaning of this phrase it will surely be remembered as an affirmation
of a criminal act in which his target had expressed a willingness to participate.
Yet the recorded statement itself, without the agent's
interpretation, would be susceptible to less prejudicial interpretations.
If
the target acknowledges these ambiguous assertions, he may be held accountable
at trial for the agent's interpretation of their meaning, rather than the interpretation
that may have seemed appropriate to him at the time the conversation took place.
The next level in the hierarchy of techniques employed
by government agents are those with a more psychological bent. These are statements
initiated by the agents or cooperating informants to convey on tape an emotional
or psychological atmosphere that reinforces the assumption that those being
recorded are all parties to a common perception of the criminality of what is
taking place.
The most common of these techniques is the expression
of "security anxiety." Time and time again conversations begin or end with the
recording agent telling his target of the agent's own anxieties about whether
the conversation is being recorded. Statements like "You can't trust these
phones," "is it safe to talk?" or, "call me from a pay phone" psychologically influence
the juror listening to the tape to perceive any conversation that follows such
statements as criminal and conspiratorial.
The fact that it is the informant or agent doing the
recording who is first to express his anxiety about his own words being taped
is lost on the jury, especially if the target responds at all to the questions.
For example, "is it alright to talk here?" "yes, I think so," results in a pseudo-agreement
that both parties should have to worry about whether they are being recorded.
The result of the agent's introducing these statements into a recorded conversation
is to criminalize any ensuing conversation in a way that transcends the actual
words spoken. The sophisticated psychology doesn't end there, however.
The tape
artist will also introduce into recorded conversations statements expressing
his own subordination to the target's every whim. An example would be
"give
me a decision, when I call up, who you want me to give my share to,
okay?" or, "you tell me what to do, you're the quarterback."
The psychological effect on the jury is to subordinate
the agent to his target's commands, and to encourage the target to make statements
that will demonstrate his commanding role. These sham directives create the
impression of a dominant/passive relationship between the target and the recording
agent or informant. They also serve the purpose of soliciting an overt act from
the target that would not have been articulated but for the agent's imploring
his target to tell him what to do, where to be, and who to see.
Another ploy aimed right at the jury's heart strings
is the volunteering of statements on tape by the agent concerning how much jeopardy
and stress his role is subjecting him to. Frequently, recording commences before
the actual encounter with the target. In that interim, the agent will volunteer
statements about his stress and anxiety for his personal safety that no one
but the recorder is in a position to hear. But the jury hears those statements,
of course, and perceives a threat to the agent or informant that taints their
perception of the individual whom the agent has yet to encounter.
What all these techniques have in common is a reliance
upon tape-recorded evidence. The use of such evidence requires a much stricter
standard of scrutiny when it is employed as a creative instrument of investigation,
rather than as a passive recorder of crimes that do not require an elaborate
undercover work of fiction to be committed.
We have arrived at a point where the government can conduct
investigations and prosecutions in which it can virtually dictate the form that
the evidence will take. Undercover operators undoubtedly will continue to evaluate
their success and combine their collective experience to develop even more insightful
formulas for compromising individuals in contrived circumstances. We are stumbling
into an era in criminal justice where tape-recorded crimes don't exist, but
for the tape recorders.
