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In episode 12, season 4 of The Office, called "The Deposition", the diary of a witness (Michael Scott) is used as evidence, without the witness's consent. The diary was taken by the suer, Jan Levinson, who was Soctt's girlfriend at the time. This happened during a deposition. I can't remember whether the attorneys there were aware of Scott's lack of consent.

So, here are my questions:

  1. Is a personal text (like a diary), submitted without the consent of the author, admissible evidence?

  2. If such evidence has been submitted and reviewed, and it later comes out the text was submitted without the consent of the author, what happens to the evidence and the case? If the answer to 1. is "no", is the evidence thrown out on the grounds of inadmissibility, or is the case ended on the grounds of malpractice or something? Perhaps it depends on who took the diary? If the lawyer did it, maybe that's cause of ending the case, whereas if another person did it, and simply handed it to the lawyer, it's not?

The case in question is about Levinson suing her former employer (Dunder Mifflin Paper Company, Inc.) for wrongful termination, where her claim is that she was fired due to her breast augmentation surgery. The diary is being used for her case, and Scott is her witness.

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    The first potential issue is that you need to have a legal right to actually access the diary. You can't just unlawfully break into someone's house and take their diary, just like you can't just break into someone's house and take any other piece of evidence. I don't believe this was an issue in The Office. Then we'd get into whether its nature as a diary would affect it's admissibility in court.
    – NotThatGuy
    Mar 1 at 10:16
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    "Stolen evidence may be admissible–if it's relevant. Problems in its acquisition go to weight, not admissibility." "Evidence that private citizens find—even illegally—is usually admissible in court. In general, whatever a private citizen—rather than a police officer—uncovers through an illegal search is admissible in court." - consent has nothing to do with it; it's admissible or it's not.
    – Mazura
    Mar 1 at 20:55
  • @Mazura Interesting. This might resolve a discussion had below Dale M's answer. However, there the question is specifically about admissibility of evidence collected in violation of someone's rights by a private citizen, and not just evidence collected illegally by a private citizen. Perhaps your quoted text touches on that as well?
    – user110391
    Mar 1 at 21:01
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    IDK, that's what google 'one-boxed' for me when I asked it if stolen evidence was admissible. - If you're a cop, no. Anyone else it's fair game depending on 'weight' (w/e that means).
    – Mazura
    Mar 1 at 21:04
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    Anecdotally, I have seen several cases in the news over the years that boil down to: "Thief steals stuff, finds pedophile porn, turns evidence over to the police despite risking prosecution for admission of theft". I cannot remember hearing that the police refused to investigate one of the (alleged) pedophiles on account of the evidence being produced by way of a crime.
    – Frodyne
    Mar 2 at 14:44

2 Answers 2

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Is a personal text (like a diary), submitted without the consent of the author, admissible evidence?

Usually, it is admissible evidence. There is no legal right to keep your diary private.

Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.).

If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally.

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    @user110391 I misunderstood your question and thought the suit was against the diary owner. In any case, if the diary were self-incriminating of a crime, the author might be able to claim the 5th Amendment even in a civil case, although this could result in an adverse inference against the diarist.
    – ohwilleke
    Mar 1 at 1:48
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    @user110391 "a draft for a book one is writing?" Generally, yes, although a court has broad discretion to limit the way that evidence is used to maximize relevance and minimize prejudice. Someone with passwords or other protections of private writings can be compelled to disclose them on threat of being held in contempt of court and being incarcerated or fined an amount per day until the person with the power to access it does so.
    – ohwilleke
    Mar 1 at 2:02
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    Wow, I really thought there'd be privacy laws prohibiting this. Thanks for the answer!
    – user110391
    Mar 1 at 2:04
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    @user110391 There might be outside the U.S. in some jurisdictions, but I am not aware of any that do so.
    – ohwilleke
    Mar 1 at 2:06
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    Important to note that the diary in this case was not subpoenaed, there was no legal compulsion to produce it as evidence. Jan effectively stole Michael's diary and freely submitted it. I'd think that might make the entire diary inadmissible evidence, as it was collected in violation of Michael's 4th amendment rights. As a parallel, I don't think a private investigator could break into a home, conduct a warrantless search, and expect evidence collected in that manner to be admissible. Michael can be compelled to produce the diary, but can Jan just take it herself? Mar 1 at 15:56
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If you are in possession of evidence, you can be required to produce it

If you are a party to the case (plaintiff or defendant) this is through the discovery process. If you are not a party, then your evidence can be subpoenaed by either party or the court itself.

“Private” does not make something “not evidence”.

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    But what if the evidence isn't subpoenaed or required to be produced by any legal channel? In this episode, Jan effectively steals Michael's diary and submits it as evidence herself. This seems somewhat like a private investigator breaking into someone's home without a warrant and collecting evidence, which I'm not sure could be legally used. There certainly are legal ways to require the production of evidence, but evidence can also become inadmissible if it's obtained in violation of your rights. This seems more like the latter than the former, as there was never a subpoena. Mar 1 at 13:49
  • @NuclearHoagie It sounds, then, like there are additional facts to consider in this case and that the question ought to be updated with more information.
    – Michael W.
    Mar 1 at 15:37
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    @NuclearHoagie private investigators don't get warrants to search anyone's house
    – Neil Meyer
    Mar 1 at 16:30
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    So long as the girlfriend had legal access to the diary (even if lacking ethical access) I suspect a US court wouldn't look into it being a private document. Much like while a resident can object to the police entering they can only do so while actually present, if the objector leaves then another resident is free to invite the police to enter. (Assuming, of course, that any other issues such as relevance, etc fall in favor of admitting the diary). Mar 2 at 6:46
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    @user110391 why do you think it matters to admissibility if it was obtained legally or not. Maybe you should ask that question?
    – Dale M
    Mar 3 at 2:10

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