One of the biggest changes I've seen in my almost 20 years defending federal criminal cases is the explosion of wiretap cases. When I started with the Federal Defenders in 1992, wiretap cases were very rare. Now, any federal defense attorney worth his or her salt is probably defending one or more wiretap cases at any one time. From my vantage point, this explosion has resulted primarily from two factors. One, technology improvements have made wiretaps significantly easier to use and process by the prosecution and now result in crystal-clear digital recordings rather than the largely inaudible tape recordings of the not-to-distant past. Second, appellate courts appear to have relaxed--at least in practice, if not in theory--the "necessity" requirement for prosecutors to hurdle before district courts approve a wiretap order. Only time will tell whether courts will reverse course and put more teeth back into the necessity rule.
Many believe that billionaire hedge fund investor Raj Rajaratnam's recent conviction for insider trading in federal court in Manhattan will hasten this trend by emboldening prosecutors to use wiretaps in more white collar fraud cases, see, NPR Story, "Wiretaps: Not Just For Mob Bosses Anymore," 5/11/11, NY Times, "Galleon Conviction Likely To Embolden Prosecutors," 5/11/11, and NY Times, "Prosecutors Cite Tapes of Galleon Chief as 'Devastating' Proof Of Guilt," 4/20/11.
Wiretap cases present substantially more challenges for defense attorneys in pretrial preparation and at trial, and are usually much more costly and time-consuming to defend well. But a rigorous defense can also expose fatal flaws in the government's case, such as how the defense's investigation and review of voluminous wiretap recordings led to the collapse of this district's Harrison Jack prosecution. Defense attorneys need to be prepared, Wiretap Primer. There are no shortcuts to a successful defense.