Rapper Kanye West and his wife, reality TV star Kim Kardashian West, could face criminal charges for covertly recording and then posting a conversation West had with pop star Taylor Swift on social media. But which laws did the superstar couple allegedly violate when they recorded Swift and then told the world about it? And what sort of penalties could they face?
The Beginnings of a Scandal
On July 17th, Kardashian West leaked a series of video Snapchats showing a phone conversation between her husband and Swift. In the video, West talks about a line he planned to use in his song “Famous,” in which he raps that he and Swift “might still have sex.” Swift appears to consent to the line, deeming it “like a compliment, kind of.”
However, Swift changed her tune upon the release of the footage. Seemingly outraged, she denied consenting to the line mentioning her in “Famous” and also claimed that she did not know that the conversation was being recorded. Actually, Swift was already aware of the existence of the recording months before its public release. According to the gossip site TMZ, Swift’s legal team sent a letter to West’s lawyer in February, demanding that the recording be destroyed. The letter warned that the making of the secret recording was a felony offense.
Did Kanye West and Kim Kardashian West Actually Break Any Laws?
Many of the potential legal issues raised by this situation are dependent on unknown or disputed facts. West was allegedly filmed making the call to Swift while at a recording studio in the Los Angeles area. If this is true, West could be in big trouble—California is a “two-party consent” state, meaning that all parties to a phone call must consent to being recorded. Even if Swift was not in California when West called her, this does not necessarily let the rapper off the hook. California, unlike in some other states where “two-party consent” is needed, does not give West any leeway if Swift herself wasn’t in California at the time of the call.
In contrast, federal law stipulates that only one party has to consent to make recording a phone call legal. According to privacy law expert Ari Ezra Waldman, when the parties to a secretly recorded call are in different states, it is unclear whether federal or state law will apply.
(Interestingly, the future of “two-party consent” rules is not guaranteed. In West’s home state of Illinois, the state’s Supreme Court ruled in 2014 that making recording conversations illegal was an infringement on the First Amendment. It is possible that a similar examination of the law could someday happen in California.)
Putting federal law aside, if it is found that Swift did not consent to the recording made of her under a “two-party consent” law, then both West and Kardashian West could be looking at serious consequences. Besides the penalties West could face in California criminal court (including up to a year in prison), Swift could bring civil action against him with a lawsuit seeking damages. A California court could award Swift substantial damages including punitive damages, as is also the case in other areas of the law where the defendant’s actions are deemed harmful.
Additionally, Kardashian West could face damages or fines for the publication of the recording. According to legal experts, publicizing Swift’s conversation on social media is an invasion of her privacy, as she has a reasonable expectation of privacy on a private phone call.
Did Swift Actually Expect Her Call to Be Private?
If Swift does decide to bring legal action against West and Kardashian West, the court must determine whether there was actually an expectation of privacy in the recorded conversation.
Legally, even if Swift did not explicitly consent to a recording, if a “reasonable person” would have assumed others were listening in on their conversation, Swift may not have a claim against West. After all, California’s two-party consent law only applies to “confidential communication.”
Gossip site TMZ, upon hearing the entire recording, concluded that Swift was aware that multiple people were listening in on her conversation with West. Swift, however, maintains that she did not know she was on speakerphone at the time. It seems that, for now at least, the feud between three of pop culture’s most prominent figures is far from over.
Authored by Andrea Babinec, LegalMatch Legal Writer
Everyone loves a murder mystery, but evidently they love them even more when they’re based off of true stories.
The Serial podcast, the most popular podcast of all time, was based on a 15-year-old murder mystery. The podcast revisits the investigation surrounding the 1999 strangling death of a Baltimore high-school student, Hae Min Lee. Her former 17-year-old boyfriend, Adnan Syed, was convicted of her murder and is now serving a life sentence for the crime. “Serial” investigates the trial of Syed.
Producers of Serial do a good job of casting doubt that Syed in fact killed Lee. Many Serial listeners finish the twelve episodes convinced that Syed didn’t kill Lee, or at least doubting his guilt.
Adnan Syed was recently granted a new trial.
How was Adnan Syed Convicted?
In order to be convicted of any crime, including murder, the prosecution must convince the jury to the point that they have no reasonable doubts in their minds that the defendant is guilty of the crime for which he or she is charged. It is sometimes referred to as a moral certainty. It is the toughest standard because of the serious ramifications of conviction, namely prison time. In states that allow capital punishment, convicted murderers can be sentenced to the death penalty.
Serial reveals that at the time, the jurors believed beyond a reasonable doubt that Syed was guilty of murdering Lee.
Why was Adnan Syed Granted a New Trial?
Make no mistake about it – Adnan Syed would have never gotten a new trial were it not for the notoriety of his case due to the Serial podcast. As a result, bloggers went into meticulous detail about how Syed could not have possibly committed the crime, people called for the release of Syed, and others blamed Syed’s defense attorney for his conviction.
In any jury trial, each side has a specific time to present their case. The state or prosecution presents their side of the story first. They present their evidence to the jury by way of any physical evidence (such as murder weapons), eyewitness and expert testimony, and anything else they think will help their case. The defense has the opportunity cross-examine all witnesses presented by the prosecution. After the prosecution rests its case, it is the defense’s turn to defend against the allegations by presenting their own evidence.
Before the evidence is presented to the jury, the prosecution comes up with a “legal theory” of the case. This means that they develop their rendition of the chain of events and what exactly transpired during the commission of the crime. The thing is they don’t always care if they “get it right.” Instead, they use what evidence they have to shape their legal theory.
In Syed’s case, his conviction primarily hinged on two pieces of evidence: (1) testimony from a friend named Jay who claims Syed killed Lee and they both buried the body; and (2) phone records which placed Syed near the location of the body. Syed himself couldn’t remember where he was during the time the prosecution claims he murdered Lee. In addition, while jurors aren’t supposed to hold it against a defendant if he chooses not to testify on his own behalf, it is simply human nature to wonder why a defendant wouldn’t defend himself unless he had something to hide. Syed did not testify on his own behalf. All of these things contributed to his conviction.
But if you’ve listened to the podcast, you know that Jay’s testimony is fraught with doubt, his testimony having changed time and time again. Moreover, a potentially exculpatory witness, Asian McClain, claimed to have been with Syed during the time the prosecution accuses him of murdering Lee. Syed’s attorney knew about the witness but failed to ever interview her. However, this evidence did not lead to Syed’s ruling of a new trial.
Instead, the new trial was granted because the Baltimore appeals judge found Syed’s defense attorney’s representation “fell below the standard of reasonable professional judgment” in handling his case. Why? It was recently discovered that the cell phone records placing Syed near Lee’s body contained a disclaimer stating the records could not be relied upon to demonstrate the owner’s location. Syed’s defense attorney knew of the disclaimer but never cross-examined the prosecution’s key cell phone witness. The cell phone records were one of the key pieces of evidence the prosecution relied upon to secure Syed’s conviction.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
The New Mexico Supreme Court has overturned the murder conviction of Truett Thomas based on a lower court’s violation of the defendant’s 6th Amendment rights for allowing a key witness to testify via Skype. Can you imagine being on trial for murder and a key witness testifying against you only appears via Skype?
Truett was convicted of murder based off DNA evidence found to be on both the victim and the murder weapon. The witness who testified via Skype was the sole forensic scientist that worked on the evidence from which the DNA profile was pulled—that profile ultimately matched Truett. Prior to the start of Truett’s trial, the forensic analyst moved out of state and was unavailable to testify due to personal inconvenience; instead, she was permitted to testify via Skype.
Although a computer image of the witness faced the jury, the witness herself was only able to see the image of the attorney questioning her and could not see the Defendant, the jury, or the judge. She was not the State’s only witness, but the forensic scientist was the only one who had worked on the DNA profile, which happened to be the State’s sole piece of evidence used for charging Truett.
The New Mexico Supreme Court didn’t specifically address the issue of whether or not the two-way Skype testimony was a violation in and of itself, but rather Truett’s 6th Amendment rights were violated in the State’s failure to take the necessary steps that would allow for a substitute for a face-to-face confrontation. As technology advances, should courts head in the same direction?
Standard Must Be Met Before a Substitute Can Be Used
“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”
The purpose of the 6th Amendment right to confront a witness is to ensure a witness’ reliability. Reliability is established that the right is honored by:
The ability to have face-to-face confrontation is not absolute and, in the past, substitute forms of testimony have been permitted, but only if the confrontation right can still be honored and those substitutions are not given out lightly.
In Truett’s case, the witness was unavailable only because returning to New Mexico for the trial was a personal inconvenience. In Maryland v. Craig, the U.S. Supreme Court case that set the first standard, a witness was permitted to testify in a separate room via one-way closed-circuit television because the witness was a child and a victim of abuse. Those are obviously two entirely different ends of the spectrum in terms of unavailability.
It’s No Longer Enough to Establish Witness Reliability
In Crawford v. Washington, the U.S. Supreme Court established a new precedent. Face-to-face confrontation of an accusatory witness can only be denied:
Taking it again a step further, the U.S. Supreme Court previously held testimonial witness testimony can only be admitted at trial if the witness was unavailable for trial and the defendant had a prior opportunity to cross-examine the witness.
Here, in Truett’s case, the Court found no evidence of necessity to further an important public policy. There was no evidentiary hearing conducted on the matter, and an inconvenience, alone, to the witness is not enough to establish legal grounds for unavailability.
Changing Technology Shouldn’t Always Mean a Change in Procedure
That leaves the begging question—should courts be able to use Skype testimony as evidence in a trial in lieu of in-person face-to-face testimony? There’s definitely something to be said about being on the witness stand at trial. Being in a full court room, under oath, and in the presence of a jury is entirely different than being alone in a room and having to simply face the former virtually.
The Supreme Court has previously rejected an amendment to the Federal Rules of Criminal Procedure, which would have allowed witnesses to testify via two-way video, but as Justices change in the Court, so to could their position on the subject. It’s a risky line to draw to allow room for exceptions to the face-to-face confrontation rule, especially with ever-changing technology, but it does serve a purpose when witnesses are legitimately unavailable (or in cases like Craig).
There needs to be room for exceptions for those circumstances that truly warrant one because, otherwise, cases could be forced to remain stagnant if key witnesses are perpetually unavailable to testify in person. However, it should remain an exception and not the rule.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
TV dramas that are loosely based on the American legal system often have a trial scene where a lawyer is asking the witness several questions and the witness “pleads the Fifth.” Once the character pleads the Fifth, he no longer has to speak on the subject and a loud gasp is heard in the courtroom as the witness defiantly walks off the stand.
Pleading the Fifth Amendment in real life is not as dramatic, but it does give the user several benefits. Here are some things you should know about invoking the Fifth Amendment.
What is the Fifth Amendment?
The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…nor shall [any person] be compelled in any criminal case to be a witness against himself…”
The Fifth Amendment protects witnesses from having to testify if they may incriminate themselves in the process through this testimony.
When Can the Fifth Amendment Be Invoked?
Witnesses can assert the Fifth Amendment against self-incrimination in both civil and criminal proceedings. They can claim the privilege in state or federal court in trials, depositions, administrative law proceedings, and investigatory proceedings such as grand jury hearings. However, the privilege does not apply to people who fear exposure to prosecution in countries other than the United States.
What’s the Difference between Invoking the Fifth Amendment in Civil versus Criminal Cases?
There really is no procedural difference in invoking the Fifth for Civil and Criminal cases. In both cases, a witness can invoke the Fifth in trials, depositions, administrative law proceedings, and investigatory proceedings.
It is not uncommon for a witness to be involved in a civil and criminal case at the same time. For example, a witness may be called to testify in a civil deposition while a criminal case against him is in its investigative stages. In this case, the witness will likely invoke the Fifth Amendment. Because a criminal proceeding’s consequences can be more severe than civil cases in that criminal findings can include prison or jail time, a witness may be able to get a judge to postpone (or “stay”) the civil matter until the criminal one is concluded. Even if no stay is granted, a witness would be better off invoking the Fifth Amendment in the civil case in order to prevent self-incrimination in the criminal case.
Can You Waive Your Fifth Amendment Privilege?
Yes. If a witness invokes the privilege, but later makes statements about the topic in question, he automatically waives the privilege as to that point. For instance, if a witness invokes the Fifth but answers questions about that specific subject matter later, the judge could decide that the privilege was waived. While a witness can waive the privilege after asserting it, judges are hesitant to rule that the privilege was waived because inadvertent waiver of the privilege can have serious implications.
Are There Any Limits on the Fifth Amendment Privilege?
There’s no limit on the amount of times you can invoke the Fifth Amendment in any proceeding. Hilary Clinton’s IT specialist recently invoked the Fifth Amendment 125 times during his deposition. However, not every disclosure can be subject of a Fifth Amendment assertion. Instead, only statements that the witness “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used” are subject to the Fifth Amendment. The question then becomes whether the other side can use the statements against the witness. The witness is entitled to claim the privilege against self-incrimination if the other party could reasonably use the statements as evidence against the witness.
Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law
Should it be a crime for someone to sell life insurance policies to investors without the insurance companies consent? More importantly, should one go to jail for fraud even when the defendant didn't actually steal any property? Michael Binday doesn’t think so, and he’s taken his case all the way to the Supreme Court.
In a petition filed with the court on March 10, former insurance broker Binday asked that the appeals court’s ruling in his case be overturned, arguing that although he may have breached his contracts with insurance companies, he did not commit a crime in doing so. Binday argues that he didn’t actually steal anything from the insurance companies and so cannot be guilty of fraud under the statutes.
Is It Fraud If the Defendant Restricts the Victim’s “Right to Control Property?”
It depends on who you ask. Prosecutors considered the information on the insurance applications Binday obtained to be the insurance companies “property,” because the information influenced the companies “right to control” who they do business with, and charged him with mail and wire fraud based on their interpretation of federal fraud statutes. One of these statutes states, in part, that whoever uses the mail “for obtaining money or property by means of false or fraudulent pretenses” is guilty of mail fraud.
Another federal fraud statute similarly states that whoever uses means of interstate communication “for obtaining money or property by means of false or fraudulent pretenses” is guilty of wire fraud. In documents presented to the Supreme Court, prosecutors argue that Binday’s actions deprived the insurance companies of their right to make an informed decision about what to do with their money or property.
Binday’s defense team fired back that the insurance companies had not actually suffered a loss of tangible property as the prosecution never even attempted to prove that the insurance companies had lost money on the policies Binday procured. The defense further argued: “if depriving an insurance company of information necessarily deprives that company of property, then all lies to insurers are mail or wire fraud, full stop.” The defense went on to say that the “right to control property” doctrine worked to dramatically expand the scope of the federal fraud statutes.
So How Will the Supreme Court Rule in United States v. Binday?
Binday’s defense argued that that the Supreme Court’s review is especially important in their case because of how easily federal prosecutors could then apply the same “right to control property” reasoning to other cases. With these remarks, the defense recognized the Supreme Court’s power to set a precedent in how future, similar cases will be decided.
The prosecution argued that the harm suffered by the insurance companies in Binday’s case was significant, and that damages included fewer than expected premium payments as a result of Binday’s “fraudulent inflation” of the insurance applicants’ net worth due to insurers expectations that applicants with higher net worth tend to live longer and that insurers would supposedly receive less income than expected because while third-party investors typically fund policies at or near the minimum amount necessary, people with insurance often pay more than the required premiums.
Additionally, the prosecution asserted that, as a result of Bindery’s scheme, insurers would have to pay out on more policies than anticipated, because while a proportion of insured people terminate their policies, third-party investors do not.
In spite of the damages Binday’s insurance scheme supposedly caused insurance companies, it seems unlikely that the Supreme Court will apply the broad language of federal fraud statutes against him. Binday’s defense argued that the fraud statutes cited by the prosecutors were not a license to “punish all wrongdoing wherever found” with federal prosecution.
Binday’s own defense team admits that he violated the terms of his agreements with the insurance companies. However, in their petition to the Supreme Court, they argue that what should have been, at most, a state civil dispute was unjustly transformed into a federal criminal case. They suggest that a more appropriate way for the insurance companies to address their issues with Binday would be to sue him for breach of contract or terminate him as a broker.
Instead, it appears that the appeals court in Binday v. United States overstepped its boundaries to make an example out of the defendant. The Supreme Court should right this wrong and rule in Binday’s favor.
Authored by Andrea Babinec, LegalMatch Legal Writer