Saturday, January 26, 2013


I was sitting in my office a few days ago minding my own business when I got a call from a reporter in Miami. He wanted to know what I thought about the mess down in Miami where the NCAA has obtained some evidence against UM that might not have been gotten in a perfectly proper manner. I had heard some emoting on TV about the situation and seen a few headlines, so I felt perfectly competent to bring the full weight of my considerable ignorance to bear upon the problem. I don't recall exactly what I was asked, but I ventured some opinions, which can be read by following this weblink:

Newspapers have limited space to report the statements of interviewees. I understand the problems they confront. The reporter did a diligent (and competent) job of trying to distill the gist of our half-hour conversation into a few sentences, but it was inevitable that the nuances of the bald statements I made would be lost in translation. I would like to supply the omitted nuances:

1. On the issue of whether the NCAA could lawfully use the improperly obtained evidence in their investigation, I said that there was no constitutional bar to a private entity using improperly obtained evidence. I gave the example of the divorce detective taking compromising pictures through the motel room window, saying that the pictures would be admissible in the divorce hearing. Although I didn't mention it, I once worked a complaint where the husband had kicked a hotel door in and stormed into the room to take photographs of his wife in bed with another man. The pictures went into evidence at the divorce, and the husband went to court to answer to charges of criminal trespass. As I saw things, the NCAA was in a similar position to that occupied the aggrieved husband. The difference was that what the NCAA's agents did may have been unethical, while what the aggrieved husband did was criminal.

2. On the issue of the NCAA hiring an outside firm to investigate themselves over the issue, I made a comment that I thought it was overreacting on the part of the NCAA. I said that if they didn't want to use the deposition evidence, then they could save a lot of money by just dropping the depositions into the trash can and continuing their investigation. Any non-use of such evidence was a matter of self-imposed restriction rather than legal restriction. As I learned through an email from an irritated reader of the Miami news, the NCAA apparently has self-imposed such restrictions in their by-laws.

3. I made the further observation that the NCAA's problem was less a problem of admissibility of evidence and more a problem of image, and that it appeared to me the investigation of themselves which they had commissioned was aimed more at repairing their image than anything else. I said that they had placed themselves in an awkward position trying to discipline a program for "lack of institutional control" when they were exhibiting the same sort of "lack of institutional control." Inside the organization itself all that seemed necessary to me was to discipline those employees who were guilty of misconduct and decline to use the depositions as evidence.

One of the irate emails I received lambasted me because I taught prosecutorial ethics and I was condoning the use of unethical tactics. Only half of the criticism was accurate. I will freely admit teaching prosecutorial ethics, but I do not condone the use of unethical tactics. The point I was making was that unethical does not necessarily mean either illegal or inadmissible. Unethical conduct, however, should always mean forbidden conduct.