Will the costly wiretaps that were essential in convicting Raj Rajaratnam of insider trading lead to a “CSI effect” in white collar crime?
After Rajaratnam’s conviction, The Associated Press quoted plenty of lawyers as saying that the use of wiretaps — formerly used in organized-crime and drug cases but not insider trading – led to a resounding success. The problem could come in raising expectations of what juries will need to see to convict on this crime. You can’t wiretap everyone. There are warrants to get, and as importantly, wiretapping is hellishly expensive.
The debate over a CSI effect in criminal law has been on for years. Jurors watch crime shows on television in which scientific evidence is gathered in what seems like a day or two, presented in a nice neat package and used to convict people we are certain are bad guys. Some jurors come to demand evidence just like they’ve seen on TV before they convict.
As Jeffrey Toobin outlined in a New Yorker piece a few years ago, the ease with which investigators get “a match” of nail clippings or other evidence can be greatly exaggerated on television.
In the Rajaratnam case, prosecutors eventually prevailed with what the jury found to be convincing wiretap evidence of guilt, but a human being still had to sit there and listen for nine months, and then sort through that huge amount of raw evidence to make sense of it for a jury by playing portions of just 45 conversations.
That’s expensive labor. In 2009, the average cost of a federal wiretap was more than $60,000, according to a report by the Administrative Office of the U.S. Courts. With an average length of 42 days per wiretap, imagine what Rajaratnam’s eight months of recordings cost to gather and analyze.
If wiretaps are what it’s going to take to convict on insider trading, expect a few blockbuster cases like Rajaratnam’s and the hope that those will act as a deterrent for everyone else.