Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality

This article addresses a longstanding concern in American criminal justice: the risk 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 assuming added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature. Dirty Silver Platters 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 article therefore seeks to pick 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 article shines a spotlight on a critically important matter, implicating core rule of law and governmental transparency values, which will assume ever-greater importance in coming years as governments accelerate their combined investigative efforts in the battle against crime and domestic terrorism.