Prosecutors would ideally need an admission or physical evidence to prove that private investigator Anthony Pellicano was instructed by ally of his employers to conduct illegal wiretaps on entertainment industry figures, legal experts said. Short of that, the case would be one of inference, making it much harder to prove.

For now, the wiretapping investigation involving Pellicano, veteran entertainment lawyer Bert Fields and reportedly other prominent showbiz attorneys remains shrouded in the secrecy of a federal grand jury in Los Angeles, which could be called on to issue indictments. Even then, transcripts of the grand jury sessions would remain forever sealed to all but the defense attorneys who need them to prepare for trial.

What little is known of the investigation has come from those who have been questioned by the FBI, such as Fields, or those who have testified before the grand jury.

Fields has denied that he ordered or knew of any illegal wiretapping by Pellicano--directly addressing the critical issue of criminal intent.

"The prosecution has to prove not so much what happened but did the defendant have the requisite knowledge and purpose to make it criminal," said Sam Pillsbury, a criminal law professor at Loyola Law School and a former U.S. attorney. "What the prosecution wants most of all is a direct admission, either a confession or an admission of a reliable witness. (If not), the prosecution has to work by inference: 'Here's the entire scenario, and from all of what we've proven, can you infer that the defendant knew about the wrongful action., "

Fields and his attorney Donald Re did not return calls for comment Tuesday.

The investigation began last year when Alexander Proctor was suspected of threatening Los Angeles Times reporter Anita Busch, the former editor of The Hollywood Reporter, as she investigated a connection between actor Steven Seagal and reputed Mafia associate Julius Nasso. Proctor, who is awaiting trial, told an informant that he made the threat at the request of Pellicano.

The FBI raided Pellicano's office in November 2002 and discovered what is believed to be proof of wiretapping as well as the explosives that yielded a 33-month prison term for Pellicano, who began serving the sentence Monday.

So far, Pellicano has refused to cooperate with the U.S. Attorney's Office.

Even if Pellicano were to testify against his former employers, his presence on the witness stand would open him up to cross-examination and his motives would be questioned, observers and attorneys said. But the scrutiny in the investigation has fallen on attorneys like Fields, who hired Pellicano as an investigator.

"Obviously, if someone ordered that, they would also be criminally responsible as an accomplice or as a conspirator," USC law professor Erwin Chemerinsky said.

Conspiracy is a far more serious crime than wiretapping, which is usually punishable by anything from home detention to 10-16 months in prison.

A smoking gun could come in the form of correspondence between Pellicano and a client, which would prove accessory, according to Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School.

"It could be e-mails, conversations, phone calls--an insider exchange in the tbrm of notes to a file," she said. "There is a panoply of possible communications."

Clients who knew of illegal wiretapping would not be protected by attorney-client privilege, which does not apply if an attorney's services were used in furtherance of a crime or fraud, Levenson said.

Still, the client is another step removed from the alleged illegal activity, making it that much harder to prove a link.

Potential wrongdoing is being determined by the 23-member grand jury which can serve both an investigative function of allowing prosecutors to collect evidence and an accusatory function, whereby it is asked to issue an indictment. The latter requires that at least 16 members be present and that 12 vote in favor of the prosecution's request to "return a true bill."

While an indictment is made public, the grand jury proceedings are not, U.S. Attorney's Office spokesman Thorn Mrozek said.

"A lawyer can (use it to) prepare for trial but can't disclose it to any other parties," Mrozek said.

Some attorneys question the fairness of the grand jury process since the target of the investigation has no right to offer a defense.

"They are general citizens who are totally dependent on the prosecutor for advice and direction," UCLA law professor Peter Arenella said. "The prosecution is also under no obligation to disclose information to the grand jury that might suggest for instance that the charges are unwarranted."

Others say prosecutors do not want to risk bringing a weak case to trial even if securing an indictment is easier to obtain.

"The (U.S. Attorney's) Office won't take a case to grand jury for indictment until it is convinced that this is a good case and they're ready to go on it," Pillsbury said.

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