Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice GOLDBERG join, dissenting.
In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, the Court sustained the admission in evidence of the testimony of a federal agent as to incriminating statements made by the accused, a laundryman, on trial for narcotics offenses. The statements were made by the accused while at large on bail pending trial in a conversation in his shop with an acquaintance and former employee, who, unknown to the accused, was a government informer and carried a radio transmitter concealed on his person. The federal agent, equipped with a radio receiver tuned to the transmitter, heard the transmitted conversation while standing on the sidewalk outside the laundry. The Court rejected arguments invoking the Fourth Amendment and our supervisory power against the admissibility of the agent's testimony. I believe that that decision was error, in reason and authority, at the time it was decided; that subsequent decisions and subsequent experience have sapped whatever vitality it may once have had; that it should now be regarded as overruled; that the instant case is rationally indistinguishable; and that, therefore, we should reverse the judgment below.
The United States in its brief and oral argument before this Court in the instant case made little effort to justify the result in On Lee, doubtless because it realizes that that decision has lost virtually all its force as authority. Instead, the Government seeks to distinguish the instant case. This strategy has succeeded, it appears, with a majority of my Brethren. The Court's refusal to accord more than passing mention in its opinion to the only decision of this Court-On Lee-factually analogous to the case at bar suggests very strongly that some of my colleagues who have joined the Court's opinion today agree with us that On Lee should be considered a dead letter. For the Court, rather than follow On Lee, has adopted the substance of the Government's attempted distinction between On Lee and the instant case.
The Government argues as follows: 'Petitioner can hardly complain that his secret thoughts were unfairly extracted from him, for they were, from the beginning, intended to be put into words, and to be communicated to the very auditor who heard them.' This argument has two prongs and I take the second first. To be sure, there were two auditors in On Lee-the informer and the federal agent outside. But equally are there two auditors here-the federal agent and the Minifon. In On Lee, the informer was the vehicle whereby the accused's statements were transmitted to a third party, whose subsequent testimony was evidence of the statements. So here, the intended auditor, Agent Davis, was the vehicle enabling the Minifon to record petitioner's statements in a form that could be, and was, offered as evidence thereof.
The Government would have it that the 'human witness (Davis) actually testifies and the machine merely repeats and corroborates his narrative.' But it can make no difference that Davis did, and the informer in On Lee did not, himself testify; for the challenged evidence, the Minifon recording, is independent evidence of the statements to which Davis also testified. A mechanical recording is not evidence that is merely repetitive or corroborative of human testimony. To be sure, it must be authenticated before it can be introduced. But once it is authenticated, its credibility does not depend upon the credibility of the human witness. Therein does a mechanical recording of a conversation differ fundamentally from, for example, notes that one of the parties to the conversation may have taken. A trier of fact credits the notes only insofar as he credits the notetaker. But he credits the Minifon recording not because he believes Davis accurately testified as to Lopez' statements but because he believes the Minifon accurately transcribed those statements. This distinction is well settled in the law of evidence, and it has been held that Minifon recordings are independent third-party evidence. Monroe v. United States, 98 U.S.App.D.C. 228, 233-234, 234 F.2d 49, 54-55.