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10/17/2004 Archived Entry: "Bill O'Reilly"

Just one comment on the Bill O'Reilly sexual harassment case that is dominating the news...

Commentators are taking it for granted that the complainant Andrea Mackris taped the so-called and now infamous sex talk phone calls because they are quoted at such length and in painstaking detail in her complaint. Indeed, FOX and O'Reilly are also assuming there are tapes of phone conversations with her. FOX's lawyers have formally asked for the tapes to be produced; O'Reilly has publicly called for them to be aired. This may seem to be an odd move but it is actually a crafty one. Mackris lives in New York where FOX is headquartered; O'Reilly lives in New York State. It is illegal to tape a phone conversation in NY without the other party's consent. Thus, if she has taped him, she has committed a criminal act. (You may remember the talk about prosecuting Linda Tripp during the Clinton-Lewinski flap because Tripp had taped at least one conversation in a state that prohibited covert phone recordings.) This leaves Mackris in a bit of a dilemma. In order to substantiate her charges with evidence she has to leave herself open to a criminal charge. Moreover, the fact that the "evidence" was obtained through an illegal act might mean it will be excluded from a civil proceeding and, so, leave her with little substantiation. Certainly, it would be excluded from a criminal case against O'Reilly but I am not clear on where a civil court stands on this issue given its far looser standards of evidence. But, again, whether or not taped evidence is admitted, its existence opens her to criminal charges. Interesting.