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In episode 12, season 4 of The Office, called "The Deposition", the diary of a witness (Michael Scott) is used as evidence, without the witness's consent. The diary was taken by the suer, Jan Levinson, who was Soctt's girlfriend at the time. This happened during a deposition. I can't remember whether the attorneys there were aware of Scott's lack of consent.

So, here are my questions:

  1. Is a personal text (like a diary), submitted without the consent of the author, admissible evidence?

  2. If such evidence has been submitted and reviewed, and it later comes out the text was submitted without the consent of the author, what happens to the evidence and the case? If the answer to 1. is "no", is the evidence thrown out on the grounds of inadmissibility, or is the case ended on the grounds of malpractice or something? Perhaps it depends on who took the diary? If the lawyer did it, maybe that's cause of ending the case, whereas if another person did it, and simply handed it to the lawyer, it's not?

The case in question is about Levinson suing her former employer (Dunder Mifflin Paper Company, Inc.) for wrongful termination, where her claim is that she was fired due to her breast augmentation surgery. The diary is being used for her case, and Scott is her witness.

user110391
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    The first potential issue is that you need to have a legal right to actually access the diary. You can't just unlawfully break into someone's house and take their diary, just like you can't just break into someone's house and take any other piece of evidence. I don't believe this was an issue in The Office. Then we'd get into whether its nature as a diary would affect it's admissibility in court. – NotThatGuy Mar 01 '22 at 10:16
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    "Stolen evidence may be admissible–if it's relevant. Problems in its acquisition go to weight, not admissibility." "Evidence that private citizens find—even illegally—is usually admissible in court. In general, whatever a private citizen—rather than a police officer—uncovers through an illegal search is admissible in court." - consent has nothing to do with it; it's admissible or it's not. – Mazura Mar 01 '22 at 20:55
  • @Mazura Interesting. This might resolve a discussion had below Dale M's answer. However, there the question is specifically about admissibility of evidence collected in violation of someone's rights by a private citizen, and not just evidence collected illegally by a private citizen. Perhaps your quoted text touches on that as well? – user110391 Mar 01 '22 at 21:01
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    IDK, that's what google 'one-boxed' for me when I asked it if stolen evidence was admissible. - If you're a cop, no. Anyone else it's fair game depending on 'weight' (w/e that means). – Mazura Mar 01 '22 at 21:04
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    Anecdotally, I have seen several cases in the news over the years that boil down to: "Thief steals stuff, finds pedophile porn, turns evidence over to the police despite risking prosecution for admission of theft". I cannot remember hearing that the police refused to investigate one of the (alleged) pedophiles on account of the evidence being produced by way of a crime. – Frodyne Mar 02 '22 at 14:44

2 Answers2

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Is a personal text (like a diary), submitted without the consent of the author, admissible evidence?

Usually, it is admissible evidence. There is no legal right to keep your diary private.

Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.).

If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally.

ohwilleke
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  • "In a criminal case the diary of a defendant could arguably be subject to self-incrimination limitations", how so? Micheal Scott, the owner of the diary, is a witness to Levinson, the suer. His diary is used for the benefit of her case. – user110391 Mar 01 '22 at 01:45
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    @user110391 I misunderstood your question and thought the suit was against the diary owner. In any case, if the diary were self-incriminating of a crime, the author might be able to claim the 5th Amendment even in a civil case, although this could result in an adverse inference against the diarist. – ohwilleke Mar 01 '22 at 01:48
  • I see, interesting. "There is no legal right to keep your diary private." Does this extend to any private text? Like for example, a draft for a book one is writing? Also, what if the personal text is protected, like a password, or, a lock and key. If the collector of evidence collects the password, or the key, by legal means, is the legislation allowed to unlock these protected documents without the consent of the document's owner? – user110391 Mar 01 '22 at 01:56
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    @user110391 "a draft for a book one is writing?" Generally, yes, although a court has broad discretion to limit the way that evidence is used to maximize relevance and minimize prejudice. Someone with passwords or other protections of private writings can be compelled to disclose them on threat of being held in contempt of court and being incarcerated or fined an amount per day until the person with the power to access it does so. – ohwilleke Mar 01 '22 at 02:02
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    Wow, I really thought there'd be privacy laws prohibiting this. Thanks for the answer! – user110391 Mar 01 '22 at 02:04
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    @user110391 There might be outside the U.S. in some jurisdictions, but I am not aware of any that do so. – ohwilleke Mar 01 '22 at 02:06
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    Important to note that the diary in this case was not subpoenaed, there was no legal compulsion to produce it as evidence. Jan effectively stole Michael's diary and freely submitted it. I'd think that might make the entire diary inadmissible evidence, as it was collected in violation of Michael's 4th amendment rights. As a parallel, I don't think a private investigator could break into a home, conduct a warrantless search, and expect evidence collected in that manner to be admissible. Michael can be compelled to produce the diary, but can Jan just take it herself? – Nuclear Hoagie Mar 01 '22 at 15:56
  • Concerning the 5th amendment rights: I thought that you couldn't invoke the Fifth to avoid handing records that already exist? (That's the impression I got from the Illustrated Guide to the Law, at least, but I'm willing to believe it got some things wrong here & there...) – Michael Seifert Mar 01 '22 at 16:18
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    @NuclearHoagie 4th Amendment rights only apply against government actors. Illegally obtained evidence in civil cases provided by a non-government actor is subject to a balancing test, but the 4th Amendment is inapplicable in both this case and in the private investigator test. – ohwilleke Mar 01 '22 at 20:45
  • @MichaelSeifert As I expressly state in my answer, I don't know the answer to that nuance one way or the other. I could imagine it being an issue and if presented with such an issue IRL I would research it to find out. – ohwilleke Mar 01 '22 at 20:46
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    I did a little digging and found this review from the Federalist Society. The main precedent appears to be Fisher v. US (1976), which holds that one can be compelled to produce pre-existing documents so long as the act of producing the documents is not in itself incriminating. – Michael Seifert Mar 01 '22 at 21:11
  • @MichaelSeifert Presumably, it could be withheld or redacted for other evidentiary privileges as well. – ohwilleke Mar 01 '22 at 21:12
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If you are in possession of evidence, you can be required to produce it

If you are a party to the case (plaintiff or defendant) this is through the discovery process. If you are not a party, then your evidence can be subpoenaed by either party or the court itself.

“Private” does not make something “not evidence”.

Dale M
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    But what if the evidence isn't subpoenaed or required to be produced by any legal channel? In this episode, Jan effectively steals Michael's diary and submits it as evidence herself. This seems somewhat like a private investigator breaking into someone's home without a warrant and collecting evidence, which I'm not sure could be legally used. There certainly are legal ways to require the production of evidence, but evidence can also become inadmissible if it's obtained in violation of your rights. This seems more like the latter than the former, as there was never a subpoena. – Nuclear Hoagie Mar 01 '22 at 13:49
  • @NuclearHoagie It sounds, then, like there are additional facts to consider in this case and that the question ought to be updated with more information. – Michael W. Mar 01 '22 at 15:37
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    @NuclearHoagie private investigators don't get warrants to search anyone's house – Neil Meyer Mar 01 '22 at 16:30
  • @MichaelW. The episode does not show how the diary was attained, which is why I left it open, so that any answer could cover the possibilities surrounding that. In addition, I don't think the episode states whether the diary was required as evidence either. What is clear however, is Scott's non-consent. Does that lack of consent automatically mean Levinson's attainment of the diary was theft? It doesn't seem like that from these answers. I imagine that it'd be theft if she had to break into his house, or a container in his house, to take it. – user110391 Mar 01 '22 at 20:48
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    So long as the girlfriend had legal access to the diary (even if lacking ethical access) I suspect a US court wouldn't look into it being a private document. Much like while a resident can object to the police entering they can only do so while actually present, if the objector leaves then another resident is free to invite the police to enter. (Assuming, of course, that any other issues such as relevance, etc fall in favor of admitting the diary). – SoronelHaetir Mar 02 '22 at 06:46
  • @SoronelHaetir If she lived in the same houses as him at that time, yet the diary was locked away in a container, would that be counted as having legal access to the diary? If she had to look for a hidden key, or break into the container, would that mean she didn't have legal access? Or if she had to pickpocket the key off of Scott's person, or pry it out of his hands, would that too constitute as not having legal access? – user110391 Mar 03 '22 at 00:46
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    @user110391 why do you think it matters to admissibility if it was obtained legally or not. Maybe you should ask that question? – Dale M Mar 03 '22 at 02:10
  • @DaleM Not saying it matters, but SoronelHaetir mentioned legal access in relation to whether a US court would looking into it being a private document. Not sure what that would entail, though given the answers here, I don't think their discoveries would matter in relation to the diary's admissibility as evidence, unless perhaps paired with irrelevancy (though perhaps that alone would make it inadmissible). Anyways, my last comment was just in response to SoronelHaetir's mention of legal access, in which I wondered what would count as such. I guess a question about that would be interesting. – user110391 Mar 03 '22 at 05:20