3) The tape recorder is properly used as long as it is authenticated via proper chain of custody.
The required proof includes:
1) testimony by an investigator identifying the item as that which the investigator discovered and took;
2) testimony by that investigator that there was no tampering with the item while it was in his/her custody;
3) testimony regarding delivery of the item to the second person who had custody of the item;
4) possibly similar testimony by the second and each subsequent person who had custody of the item until the time of its presentation in court. Where the item has been submitted to a laboratory for analysis, proof of the chain of custody should ideally include: testimony from the person who took the item (or specimen) to the laboratory; proof of the method of reception and storage at the laboratory prior to and after analysis; up to the time of trial.
The most difficult aspect of the proof specified above is usually the identification of the evidence by the investigator who discovered it. This difficulty arises because of the frequent failure to properly "mark" the item. "Marking"...
Unfortunately, sometimes items are "marked" by affixing an evidence tag to the item with a string. The investigator then puts his/her initials on the tag. When the string breaks and the tag is lost it may then be impossible for the investigator to identify the item as being the item that was discovered. Here, in the case of the photograph, the chain of custody was broken.
In this case, it is perfectly legal to tape a conversation where one party does not know he is being taped, but the key is to authenticate the tape using chain of custody techniques as listed above.
4) This is not a search as the defendant has no right to the smells or other omissions omitted by his body. He cannot keep them discrete, and if an officer is able to enhance his sensory perceptions by this device, the Supreme Court will rule the device to be constitutional.
Besides, the criminal defendant does not have the right to an attorney in such tests anyway.
Bibliography
BarBri. 2005. Multistate Review. New York: Barbri.
PMBR. 2005. Multistate Review. New York: PMBR.
