99 Iowa L. Rev. 293 (2013)

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Abstract

This Essay addresses a longstanding concern in American criminal justice: that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development that has assumed added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature.

The Essay offers the first comprehensive examination of this phenomenon and its many negative consequences, highlighting the need for more exacting judicial scrutiny of intergovernmental investigations. Without such scrutiny, modern silver platter doctrine, which allows admission of evidence illegally secured by non-forum agents found to be acting independently of agents of the forum court, is permitted to reign supreme. The Essay thus picks up where mid-twentieth-century courts left off, providing a reinvigorated framework to smoke out forum government agent involvement in investigations and condemn the legal evasion that it allows. In doing so, the Essay shines a spotlight on a critically important matter implicating core rule-of-law and governmental transparency values, which will assume evergreater importance in coming years as governments accelerate their combined investigative efforts in the battle against crime and domestic terrorism.