In RE BERG Et Al.

Background

A Justice of the Supreme Court, acting as Circuit Justice, considered an application filed October 28, 1972 after the Court of Appeals had earlier granted a short stay. The Solicitor General filed a response. The dispute arises from allegations that electronic surveillance may have recorded conversations involving defendants and their lawyers, raising constitutional questions about the right to counsel and protection against unreasonable searches.

Reasoning

The key question is whether prosecutors’ lack of knowledge about recordings ends the inquiry or whether courts should require a diligent search of prosecution files. The Justice noted that this case is similar to other cases now before the Court and closely related to prior decisions that ordered new trials when attorney-client talks were found in prosecutors’ files even though prosecutors did not know about them. Although prosecutors filed affidavits saying none of the defendants’ own conversations was bugged, there had been no search for their lawyers’ conversations. The Justice concluded a stay was warranted so the full Court can decide these issues.

Real world impact

The stay pauses any immediate use of the lower-court ruling and gives the Supreme Court time to consider whether prosecutors must seek out and disclose bugged attorney-client conversations. If the Court requires searches or finds such recordings were used, defendants could receive new trials. This ruling is temporary and the final outcome will depend on the full Court’s decision.