Fri. Apr 19th, 2024

18 u.s.c. 2511(2)(d) one party consent

weave through the meandering of clusterfucking of laws. if you are a victim of a crime you can record in all 50 states enjoy the work done here for you

Surveillance Security Cameras & Recording Laws

Exemptions: Consent Interceptions

Consent interceptions are common, controversial and have a history all their own. The early bans on divulging telegraph or telephone messages had a consent exception.78 The Supreme Court upheld consent interceptions against Fourth Amendment challenge both before and after the enactment of Title III.79 The argument in favor of consent interceptions has always been essentially that a speaker risks the indiscretion of his listeners and holds no superior legal position simply because a listener elects to record or transmit his statements rather than subsequently memorializing or repeating them.80 Wiretapping or electronic eavesdropping by either the police or anyone else with the consent of at least one party to the conversation is not unlawful under the federal statute.81

 

Federal Law

Federal law (18 U.S.C. § 2511) requires one-party consent, which means you can record a phone call or conversation so long as you are a party to the conversation. If you are not a party to the conversation, you can record a conversation or phone call only if at least one party consents and has full knowledge that the communication will be recorded. The statute also prohibits recording conversations with criminal or tortious intent.

One-Party Consent
If the consent of one party is required, you can record a conversation if you’re a party to the conversation. If you’re not a party to the
conversation, you can record a conversation or phone call provided one party consents to it after having full knowledge and notice that the
conversation will be recorded. Under Federal law, 18 U.S.C. § 2511(2)(d) requires only that one party give consent. In addition to this Federal
statute, thirty-eight (38) states and the District of Columbia have adopted a “one-party” consent requirement. Nevada has a one-party
consent law, but Nevada’s Supreme Court has interpreted it as an all-party consent law.

California
Under California law, it is a crime punishable by fine and/or imprisonment to record a confidential conversation without the consent of all parties, or without a notification of the recording to the parties via an audible beep at specific intervals. The California Supreme Court has defined a confidential conversation as one in which the parties have a reasonable expectation that no one is listening in or eavesdropping. In addition to criminal penalties, illegal recording can also give rise to civil damages.

CA Penal Code § 632 (definition & penalty), § 637.2 (civil damages), Flanagan v. Flanagan, 41 P.3d 575 (Cal. 2002), Cal. Pub. Util. Code Gen. Order 107-B(II)(A)

I TELL EVERYONE THEY ARE BEING RECORDED ENJOY YOUR DRAMA my cameras are always recording, and the law knows i record them so the actually have no expectation of privacy based on previous knowledge they have of me recording courtrooms

you can read this and download or print the Privacy Act R41733 PDF

Flanagan v. Flanagan (2002)

Annotate this Case

[No. S085594. Mar. 14, 2002.]J. MICHAEL FLANAGAN, Cross-complainant and Appellant, v. HONORINE T. FLANAGAN, Cross-defendant and Respondent.

(Superior Court of Los Angeles County, No. BC153016, Ralph W. Dau, Judge.)

(The Court of Appeal, Second Dist., Div. Five, No. B122810, 77 Cal. App. 4th 122.)

(Opinion by Kennard, J., expressing the unanimous view of the court.)

COUNSEL

Law Offices of Jerry K. Straub, Jerry K. Staub, Patricia Venegas; Law Offices of John Nouskajian, Jr., and John Nouskajian, Jr., for Cross-complainant and Appellant.

Allen Matkins Leck Gamble & Mallory, Edwin W. Green, A. Kristine Floyd, Bruce W. Hepler and Luke G. Anderson for Cross-defendant and Respondent.

Davis Wright Tremaine, Gary L. Bostwick, Kelli L. Sager, Karen N. Frederiksen and Andrew J. Thomas for CBS Broadcasting, Inc., The Copley Press, Inc., National Broadcasting Company, Inc., ABC, Inc., and Cable News Network as Amici Curiae on behalf of Cross-defendant and Respondent. [27 Cal. 4th 768]

OPINION

KENNARD, J.

California prohibits the recording of a telephone call without consent from all parties, but only if the call includes a “confidential communication.” (Pen. Code, § 632, subd. (a).) fn. 1 Violation of the law is a misdemeanor (ibid.) and may entail a civil penalty of $5,000 or three times the actual damages, whichever is greater (§ 637.2). Our Courts of Appeal have disagreed over the meaning of the critical term “confidential communication.” We granted review to resolve that disagreement.

One line of authority holds that a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. (Frio v. Superior Court (1988) 203 Cal. App. 3d 1480 (Frio); Coulter v. Bank of America (1994) 28 Cal. App. 4th 923.) Under the other line of authority, a conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties. (O’Laskey v. Sortino (1990) 224 Cal. App. 3d 241 (O’Laskey); see Deteresa v. American Broadcasting Companies, Inc. (9th Cir. 1997) 121 F.3d 460 (Deteresa).) We endorse the standard established in Frio and Coulter.

SITED https://law.justia.com/cases/california/supreme-court/4th/27/766.html

SITED https://www.justice.gov/archives/jm/criminal-resource-manual-1050-scope-18-usc-2511-prohibitions

 

This table breaks down the 15 states with security camera laws and notes where video surveillance is allowed and under what circumstances.

State
Public places allowed
Private places allowed
Hidden cameras allowed
Consent required
Alabama
Icon Yes LightYes
Icon No LightNo
Icon Yes LightYes
Icon No LightNo
Alabama
Icon Yes LightYes
Icon Yes LightYes
Icon No LightNo
In private places
California*
Icon Yes LightYes
Icon Yes LightYes
Icon No LightNo
Icon No LightNo
Delaware
Icon Yes LightYes
Icon No LightNo
With consent
Icon Yes LightYes
Florida
Icon Yes LightYes
Icon No LightNo
Icon Yes LightYes
Icon No LightNo
Georgia
Icon Yes LightYes
Icon Yes LightYes
Icon No LightNo
Icon No LightNo
Hawaii
Icon Yes LightYes
Icon Yes LightYes
Icon No LightNo
Icon Yes LightYes
Kansas
Icon Yes LightYes
Icon No LightNo
With consent
Icon Yes LightYes
Maine
Icon Yes LightYes
Icon No LightNo
With consent
Icon Yes LightYes
Michigan
Icon Yes LightYes
With consent
With consent
Icon Yes LightYes
Minnesota
Icon Yes LightYes
Icon No LightNo
Icon Yes LightYes
Icon No LightNo
New Hampshire
Icon Yes LightYes
Icon No LightNo
With consent
Icon Yes LightYes
South Dakota
Icon Yes LightYes
Icon No LightNo
With consent
Icon Yes LightYes
Tennessee
Icon Yes LightYes
With consent
With consent
Icon Yes LightYes
Utah
Icon Yes LightYes
With consent
With consent
Icon Yes LightYes

 

sited https://www.safewise.com/security-camera-laws/

 

 

 

 

 

 

First Amendment Protects The Right To Film Cops, Federal Court Reaffirms

Filming police officers at work is a right guaranteed by the First Amendment, the Tenth Circuit U.S. Court of Appeals declared in a ruling on July 11. Not only is the decision a win for free speech, it’s also a rare victory for government accountability, with the court rejecting legal immunity for an officer accused of retaliating against a YouTube journalist.

The “right to film the police falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power,” Judge Scott Matheson wrote for a unanimous court.

The case dates back to May 26, 2019, when Abade Irizarry and three other men were filming a DUI traffic stop in Lakewood, Colorado. Police on the scene contacted Officer Ahmed Yehia and told him about the filming, who then promptly drove over. When he arrived, Yehia stood in front of Irizarry to block his view, then shined his flashlight into the camera lenses, saturating the sensors.

Because of his “disruptive and uncontrolled behavior,” Yehia was told to leave by his fellow officers. So after spending a little over a minute at the scene, Yehia climbed back in his cruiser, drove right at Irizarry and another man filming, before swerving and blasting his air horn.

Irizarry sued, asserting that Yehia had retaliated against him for exercising his First Amendment rights. In response, the officer argued he was entitled to “qualified immunity,” which protects police officers and other government employees from being sued, unless they violated a “clearly established” right. Last summer, a federal district court sided with Yehia and tossed the case.

https://www.forbes.com/sites/nicksibilla/2022/07/24/first-amendment-protects-the-right-to-film-cops-federal-court-reaffirms/?sh=750333834b26

 

 

 

 

 

The California Fourth District Court of Appeal held, in Smith v. LoanMe, Inc.,[1] that a plaintiff failed to state a claim in arguing that a defendant business violated a provision in the California Invasion of Privacy Act (“Privacy Act”) (Penal Code section 630, et seq.) by recording its call with the plaintiff.  The Court concluded that the section applies only to recording by third-party eavesdroppers, not to recording by a participant to the phone call.

 

sited https://cpoa.org/penal-code-section-632-7-prohibits-only-third-party-eavesdroppers-not-the-participants-in-a-phone-call-themselves-from-intentionally-recording-telephonic-communications/

 

 

 

 

https://law.justia.com/cases/california/supreme-court/3d/45/915.html

People v. Guzman (1988) known as People v. Guzman, 453 P3d 1130

right to truth in evidence even if obtained funny or outside of the norm or even if it violates laws written.

 

 

1982 California Proposition 8

The Victims’ Bill of Rights declared its purpose as to ensure that:

The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance.[1]

Amendment of the constitution[edit]

The Victim’s Bill of Rights added Section 28 to Article 1 of the constitution. This section has since been substantially added to and amended by Marsy’s Law, enacted in 2008. Section 28 granted victims of crime the right to restitution from the perpetrator unless there were “compelling and extraordinary reasons” to the contrary. It also conferred a right to school safety; it reads “All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful”.

Section 28 introduced a “right to truth in evidence”. This means that state courts cannot exclude any “relevant evidence” even if gathered in a manner that violates the rights of the accused. The U.S. Constitution takes priority over the California constitution so courts may still be obliged to exclude evidence under the federal Bill of Rights. In practice the law prevented the California courts from interpreting the state constitution so as to impose an exclusionary rule more strict than that required by the federal constitution.[3] Exceptions may be made to the “truth in evidence” rule by a two-thirds vote of both houses of the California Legislature.

Section 28 provided that public safety should be the primary consideration in determining whether to grant bail. The Victims’ Bill of Rights proposed to repeal Article 1, Section 12, which contained the existing constitutional provisions on bail, but this conflicted with another proposition enacted on the same day. The other proposition received a higher number of votes and so, under the California constitution, it took precedence.[2] Section 28 finally provided that prior felony convictions “shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding”.

https://en.wikipedia.org/wiki/1982_California_Proposition_8#:~:text=Section%2028%20introduced%20a%20%22right,the%20rights%20of%20the%20accused.

 

 

CALIFORNIA SUPREME COURT CONCLUDES THAT A SECRET RECORDING OF A PHONE CONVERSATION WAS NOT BARRED BY A PRIVACY PROVISION BECAUSE THAT PROVISION HAD BEEN REPEALED BY THE “RIGHT TO TRUTH-IN-EVIDENCE” PROVISION IN THE STATE CONSTITUTION

 

 

 

In the case of People v. Guzman,[1] the Supreme Court of California found that a surreptitious recording was properly admitted into evidence in a defendant’s trial for committing a lewd and lascivious act upon a child.  The Court concluded that the “Right to Truth-in-Evidence” provision in the state constitution enacted as a result of the passage of Proposition 8 abrogated a Penal Code provision prohibiting the admission of evidence obtained from recording a confidential communication.

Background

10-year-old E.F. confided to her adult neighbor Lorena that Lorena’s uncle, defendant Alejandro Guzman, had inappropriately touched E.F.  In a separate later incident, 12-year-old M.M. told her mother Esperanza that, during a sleepover with Guzman’s daughter, Guzman had touched her and made M.M. touch him.  M.M. also told Esperanza that Lorena, who was M.M.’s cousin, had warned M.M. about Guzman.  Esperanza spoke with Lorena by phone, but did not tell Lorena that the call was being recorded.

Esperanza did not inform law enforcement of the recording’s existence until the day jury selection in Guzman’s trial was to begin.  Upon learning of the recording, the prosecution informed the court that it intended to use the recording to cross-examine Lorena, who was expected to testify for the defense.  Defense counsel objected, arguing that the recording was categorically inadmissible under Penal Code Section 632(d), which prohibits the admission of “evidence obtained … in violation of this section … in any judicial, administrative, legislative, or other proceeding.”  The trial court determined instead that Section 632(d) had been repealed by the “Right to Truth-in-Evidence” provision of the California Constitution, which was enacted as part of Proposition 8 in 1982.

A transcript of the recording was subsequently admitted into evidence.  The jury thus heard Lorena making various statements that were unfavorable to Guzman.  After hearing from the various witnesses, the jury convicted Guzman of two counts of committing a lewd and lascivious act upon a child.

Guzman appealed, arguing that the trial court prejudicially erred in admitting the recording because the admission “contravened the exclusionary rule stated in Penal Code Section 632, subdivision (d).”  The Court of Appeal rejected the argument, finding that within the criminal context, Section 632(d) had been rendered inoperative by Proposition 8.  The appellate court thus concluded the recording was properly admitted and affirmed Guzman’s convictions.  Guzman sought review of the decision by the California Supreme Court.

Discussion

The California Supreme Court granted review to determine the continued viability of Section 632(d) in light of the limits placed on the exclusion of evidence by the “Right to Truth-in-Evidence” provision of the Constitution.

The Court noted that the Legislature enacted Section 632 in 1967 as part of the Invasion of Privacy Act.[2]  “The purpose of the act was to protect the right of privacy by, among other things,” “replacing prior laws that permitted the recording of telephone conversations with the consent of [only] one party to the conversation.”  (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768–769.) Subdivision (d) of Section 632, the exclusionary remedy of the section, provides:  “Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.”  (Section 632(d).)

In 1982, the voters approved Proposition 8, thereby amending the state Constitution.  Proposition 8 contained a provision known as the “Right to Truth-in-Evidence,” now codified at article I, section 28(f)(2).  In relevant part, the provision states:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.  Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103.”  (Cal Const., Art. I, section 28(f)(2) (hereafter, “Section 28(f)(2)”).)

The Court explained that it would pursue two separate inquiries to determine whether the Right to Truth-in-Evidence provision abrogated the exclusionary remedy of Section 632(d) as that remedy applies to criminal proceedings.  First, the Court considered whether the constitutional provision repealed Section 632(d) at the moment of its passage in 1982.  If so, the second inquiry would examine whether the Legislature revived Section 632(d) by a two-thirds vote any time thereafter, thus restoring the section’s prohibition against admission of secret recordings.

Did the Exclusionary Remedy of Section 632(d) Survive the Passage of the Truth-in-evidence Provision in 1982?

The Court reminded that the “the express, unambiguous language of [S]ection 28[(f)(2)]” (In re Lance W. (1985) 37 Cal.3d 873, 886) states that “[e]xcept as provided … , relevant evidence shall not be excluded in any criminal proceeding.”  (Section 28(f)(2).)  The Court determined that “[t]his clearly stated command has only one apparent meaning”—to prohibit the exclusion of evidence at criminal proceedings except on those grounds expressly contemplated by the constitutional provision.  (Lance W., supra, 37 Cal.3d at p. 886.)  Section 632(d), the Court found, was not exempt from the Right to Truth-in-Evidence provision because Section 632(d) did not fit within any of those grounds:  Section 632(d) was neither an “existing statutory rule of evidence relating to privilege or hearsay,” nor “Evidence Code Sections 352, 782 or 1103.” (Section 28(f)(2).)

From the express language of Section 28(f)(2), the Court determined that to the extent that Section 632(d) demanded the suppression of relevant evidence at criminal proceedings, it was superseded when the voters approved the constitutional amendment in 1982.  (See People v. Wheeler (1992) 4 Cal.4th 284, 291 [“[S]ection 28[(f)(2)] supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of [S]ection 28[(f)(2)] itself”].)

Moreover, the history of the Right to Truth-in-Evidence provision supported the Court’s view of the finding that Section 632(d) was abrogated by the Section 28(f)(2).  The Court noted that the ballot materials[3] related to Proposition 8 included this statement from the Legislative Analyst:  “Under current law, certain evidence is not permitted to be presented in a criminal trial or hearing.  For example, evidence obtained through unlawful eavesdropping or wiretapping, or through unlawful searches of persons or property, cannot be used in court.  This measure generally would allow most relevant evidence to be presented in criminal cases, subject to such exceptions as the Legislature may in the future enact by a two-thirds vote.” [4]  (Ballot Pamp., Primary Elec. (June 8, 1982) analysis of Prop. 8 by Legis. Analyst, p. 32.)  The Court explained that because the ballot material specifically singled out “evidence obtained through unlawful eavesdropping,” which was then “not permitted to be presented in a criminal trial or hearing,” and told voters that Proposition 8 would change the law so as to “allow most relevant evidence to be presented in criminal cases,” the natural inference was that Proposition 8 would permit “evidence obtained through unlawful eavesdropping” to be admitted in criminal cases.  “In essence,” the Supreme Court explained, “voters were informed that Proposition 8 would abrogate [S]ection 632(d)—and they approved.”

The Court thus concluded that the clear language and history of the constitutional amendment meant that the passage of the Right to Truth-in-Evidence provision in 1982 repealed Section 632(d) to the extent the section applied to criminal proceedings.

The Court rejected Guzman’s various arguments contrary to the Court’s conclusion.

In analyzing a constitutionally protected right and an associated exclusionary rule requiring suppression in violation of the right, the Court pointed to concordant reasoning in Lance W.   The Court observed that Article I, section 13 of the California Constitution protects the people’s right “to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches.”  (California Constitution, article I section 13.) In Lance W., the Supreme Court distinguished between the right protected by article I, section 13 and the associated exclusionary rule requiring suppression of evidence seized in violation of that right.  (Lance W., supra, 37 Cal.3d at pp. 886–887.) There, the Court explained, “the substantive scope of [article I, section 13] remains unaffected by Proposition 8” and “[w]hat would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today.”  (Id. at p. 886.) However, the same could not be said of the exclusionary rule, which was “eliminate[d]” by Proposition 8.  (Lance W., supra, 37 Cal.3d at p. 886.) Lance W. explained that because the exclusionary rule is simply a “remedy for violations of the search and seizure provision[],” Proposition 8 could eliminate the exclusionary remedy without affecting the “substantive scope” of article I, section 13.  (Lance W., supra, 37 Cal.3d at pp. 886–887.)

Similarly, the Court here reasoned that Proposition 8 could eliminate the exclusionary remedy of Section 632(d) without affecting the substantive scope of privacy of article I, section 1, or even more narrowly, the privacy of telephone conversations.  (Lance W., supra, 37 Cal.3d at pp. 886–887.) The Court noted that even after the passage of Proposition 8, secret recording of telephone conversations is still prohibited and is punishable by a fine of up to $2,500, imprisonment up to a year, or both.  Moreover, those injured by secret recordings may bring civil actions against the perpetrators to recover damages.  Thus, the Court determined that Proposition 8’s repeal of the Section 632(d)’s exclusionary remedy as it applied to criminal proceedings did not vanquish the right to private phone conversations itself; the right and the exclusionary remedy were not equivalent.

In sum, the Supreme Court found that the Right to Truth-in-Evidence provision abrogated Section 632(d) when Proposition 8 passed in 1982, and the Court’s first inquiry was resolved.  Because Section 28(f)(2) provides that exclusionary remedies may be created, or recreated, “by a two-thirds vote of the membership in each house of the Legislature,” the Court reached its second inquiry:  whether the Legislature revived Section 632(d) by a two-thirds vote any time thereafter.

Did Subsequent Amendments of Section 632 Revive the Exclusionary Remedy?

The California Supreme Court noted that in 1985, 1990, 1992, and 1994, the Legislature—by at least a two-thirds vote of the membership of both the Assembly and Senate—amended one or more subdivisions of Section 632 and reenacted the section in its entirety.  However, the Court determined that each time, the exclusionary remedy of subdivision (d) of Section 632 was reenacted only as an incident to other provisions of Section 632 being amended.  The Court therefore found the exclusionary remedy was not revived by the section amendments.

The Court noted that Article IV, section 9 of the California Constitution requires an amended statute to be reenacted, but a reenacted statute may be amended in only some parts and not others.  Government Code section 9605 provides that “[i]f a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form.  The portions that are not altered are to be considered as having been the law from the time when those provisions were enacted.”  (Government Code section 9605(a).) The Court clarified that “[n]either article IV, section 9, nor Government Code section 9605, contemplates reenactment of the unchanged portions of an amended statute in the form of its original enactment if there have been intervening amendments of those portions.”  (Lance W., supra, 37 Cal.3d at p. 895, fn. 18.) Instead, “[t]he clear intent of [][S]ection 9605 is to codify the rule that the unchanged portions of the newly amended statute be ‘reenacted’ as they existed immediately prior to the amendment.”  (Id., at p. 895, fn. 18, italics added.)

Thus, the Supreme Court determined that mere reenactment of Section 632 did not necessarily revive the exclusionary rule of Section 632(d).  To find that a subsequent amendment of Section 632 effected the revival of its exclusionary provision, the Court stated that there must be something in the “language, history, or context of the amendment[]” to support the conclusion that the Legislature intended such a result.  (In re Christian S. (1994) 7 Cal.4th 768, 771.) Absent evidence of such an intent, the Court continued, the reenactment of Section 632 simply reinstated the statute as it existed at the time of reenactment—i.e., the statute, as limited by the Right to Truth-in-Evidence provision to include no exclusionary remedy.

HOW THIS AFFECTS YOUR AGENCY

Agencies should be cognizant of the fact that surreptitious recording of telephone conversations is still prohibited by Penal Code Section 632.  Those who violate Section 632 are subject to fines, imprisonment, or both.  Moreover, those injured by such recordings made in violation of Section 632 may bring a civil action to recover damages.  Recordings made in violation of Section 632, however, are, pursuant to the Guzman decision, admissible in criminal proceedings pursuant to Section 28(f)(2) of the California Constitution.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] People v. Guzman, 2019 Cal. LEXIS 8937 (Dec. 5, 2019).

[2] Penal Code section 630 et seq.

[3] See Lance W., supra, 37 Cal.3d at p. 888, fn. 8: “Ballot summaries and arguments are accepted sources from which to ascertain the voters’ intent and understanding of initiative measures”.

[4] The Court noted that the Legislative Analyst also advised the voters that Proposition 8 “could not affect federal restrictions on the use of evidence.” (Ballot Pamp., supra, at p. 32.), and the Court commented that federal law imposed no restriction on the admission of the recording in this case.

 

CALIFORNIA SUPREME COURT CONCLUDES THAT A SECRET RECORDING OF A PHONE CONVERSATION WAS NOT BARRED BY A PRIVACY PROVISION BECAUSE THAT PROVISION HAD BEEN REPEALED BY THE “RIGHT TO TRUTH-IN-EVIDENCE” PROVISION IN THE STATE CONSTITUTION