Legal Grounds for Admissibility
The legal foundations for the admissibility of recordings of conversations turn primarily on the laws of evidence. In most cases, recordings of conversations are admissible so long as they are voluntarily recorded. Recording a conversation in California requires that all parties to the conversation consent to the recording in most cases. See for example California Penal Code section 632, the California Invasion of Privacy Act. This law imposes liability on those who "[k]nowingly and intentionally intercept[ ] and amplify[ ]…. a communication transmitted between two or more landline or cellular telephones…." A violation of Penal Code section 632 is a misdemeanor. In addition, at the state law level, the law of evidence also will impose requirements for the admissibility of certain types of recordings, such as the requirement that the recording is authenticated prior to admission and that the recording was made in a manner that does not alter its contents.
In addition to state laws, the Federal Wiretap Act, 18 U.S.C. sections 2510-2522 is another law in which there are serious civil and criminal sanctions for recording a person without consent. The federal law also has evidentiary implications inasmuch as it incorporates the state law remedy of preclusion of part or all of the intercepted communications. The federal wire tap act specifically applies to "the interception, divulgence, or disclosure …. of an oral, wire, or electronic communication . "
The Federal Rules of Evidence Article IV, Sections 901-905, set forth the general requirements for authentication and admissibility of all types of recordings by indicating that the court may admit evidence only if satisfied that the evidence is what the party claims it is. Fed. R. Evid. 901(a). Note that for documents, Fed. R. Evid. 901(b) provides a non-exhaustive list of examples of items that the court may consider in assessing authenticity and identifying evidence. For example a witness who saw the writing in question may authenticate a document. See Fed. R. Evid. 901(b)(1). A public record may authenticate a document of any type. See Fed. R. Evid. 901(b)(7). One whose voice is recorded may authenticate a recording, if he testifies that the recording is a true and accurate record of his speech. See Fed. R. Evid. 901(b)(5). As to a phone conversation, a person with knowledge may authenticate a recording, or by process of elimination, any other evidence that tends to prove the recording is genuine. See Fed. R. Evid. 901(b)(4) and (b)(7).
Additionally, the Federal courts have rules which apply to the admissibility of tapes. According to Federal case law, authentication of a tape can be accomplished by direct evidence that the tape was accurate and was kept in a secure place. United States v. Best, 579 F.2d 48, 52 (2d Cir.), cert. denied, 439 U.S. 928 (1978). Additionally, if the tape was recorded without the use of an electronic device, the trial judge may admit it if he is satisfied with the reliability of the means used to prepare the tape. Id.
In general, unless the conversation is confidential, it can be recorded without the consent of the person on the other end of the line, at least in California.
Federal and State Laws on Recording Conversations
In addition to the federal regulation of the wiretapping of telephone calls, each state has incorporated these provisions with their own state wiretapping laws. The most common approach is what is known as one-party consent. This simply means that as long as one person participating in the call freely and willingly consents to the call being monitored, it is legal for a conversation to be recorded. Legally, in patient and attorney client conversations, that participant, as far as the law is concerned, is your lawyer.
However, some states have what is called all-party "two party" consent laws. These are more rigid than the federal one party consent laws. This means all parties to the call must consent to the recording of the conversation. Twenty-two states have these laws: California, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin, and Vermont. Even if the conversation is being recorded within the jurisdiction of one of these states what matters is whether one of the parties to the conversation is in one of these states where the law does not allow for one party consent. Federal law still applies and federal law prevails.
Two party consent laws also apply to face to face conversations. They are different than one party consent laws. Many employers utilize security cameras and recorders to monitor the activities of employees. Audio monitoring is illegal in two- party consent states. However, camera monitoring is still legal in these states. Some states require employees to be notified when cameras are placed at places of business.
Consent to Recordings and Their Influence on Whether They Are Admissible
While you may think you have the right to record people without asking first, the law is not that straightforward. The basic consent to record a conversation refers to the idea that those participating in an activity or conversation have an understanding of its general nature. When it comes to deciding whether or not a recorded conversation is permitted in legal settings, it is necessary to break down the various types of consent:
• Verbal consent is when one party verbally agrees to enabling audio recording. While this is technically still consent – and in many places, including almost all of the U.S. except Connecticut, there does not need to be prior verbal agreement for a conversation to be legally admissible – it isn’t a hard-and-fast rule that no one can record audio without giving their permission.
• Many states have "implied consent" laws. This means that, in certain situations, the expectations of the person being recorded suggest that they were aware they were being recorded. For example, if someone calls into a radio station to talk about music, they would presumably expect a call-in program to be broadcast over the air. Hence, in the majority of these cases, consent is implied.
• One-Party Consent vs. Two-Party Consent. In one-party consent states, it is legal to record so long as at least one person consents. This means that, even if it is only you and you are recording a phone call on your own phone via speakerphone with one hand while holding a martini with the other – as is the way of the modern world – you are legally permitted to do so. But in two-party consent states, both parties must consent to the recording for it to be admissible. If even one party didn’t know that the conversation was being recorded, it could result in legal repercussions.
There are many exceptions to the admissibility of audio recordings in court even if consent is clear, but what’s important to note here is the distinction between what’s legal and the consequences.
Exceptions That Can Make a Difference
That being said, there are specific exceptions to this requirement. Both state and federal law enforcement agencies have broad powers to conduct surveillance under certain conditions. For example, a court order for electronic surveillance may be obtained if the law enforcement agency has probable cause to believe that a target of an investigation is committing a felony and that the surveillance may provide evidence of that felony. Such orders are rarely granted and may only be done for a limited period of time. Additional restrictions may apply to the extent of surveillance.
Another common exception to the consent requirement has to do with potentially prevent crime. If the recording is being made under circumstances that would potentially prevent a crime, then consent is not always necessary. For example, the Federal Wiretap Act provides an exception where one party to a conversation is acting under a reasonable belief that the recording will prevent a crime involving either destructive invasion of privacy or intimidation. Likewise, in order to protect the unauthorized recordings from being used in a criminal prosecution, the Federal Wiretap Act actually contemplates the creation of specific technical limitations on equipment used to record conversations subject to a consent exception.
In essence, although a person may be able to record private conversations in certain circumstances, this is not an absolute right, and many technical pitfalls can be avoided by simply asking for consent in most situations.
Challenges to Admissibility and Defenses
One of the possible challenges against admissibility is based on a claim that the person requesting the evidence or material did not have a right to possess it or it was obtained in violation of a law. The FTC and Department of Justice for example may not be able to introduce recordings of admitted antitrust violations without a proper warrant or subpoena.
In the event the recorded conversation contains privileged communications – and the person seeking to introduce the evidence into court is the other party to the conversation – the individual may challenge admissibility on the grounds that the wrongdoer cannot suddenly convert a privileged communication into a nonprivileged one by merely introducing it into evidence.
Stampfel v. Boegel, 245 P.2d 155, 162 (Cal. 1952).
Importantly, however, an individual may waive his or her own privilege by authorizing the interception and recording. There can therefore be a judicially created doctrine that may preclude the admissibility of the recorded conversation. This judicially created doctrine is sometimes referred to as "the ‘confidential’ exception […] which limits the effect of consent on an otherwise illegal interception to the parties to the conversation." The Next-Phone v. Berman, 146 F.2d 234, 239 (2nd Cir. 1992).
In this case, the defendant recorded private conversations with the plaintiff’s business competitors. The plaintiff argued that "the conversations had been illegally intercepted in violation of the New York wiretap law" because they were recorded without his knowledge or consent. Id. Additionally, the plaintiff argued, under "the law in New York , one who records a conversation may not legally reveal its contents to any third person." Id. The plaintiff’s claims against the defendants were that the defendants used the information obtained through the recordings to approach the plaintiff’s customers.
While the court did not rule in favor of the plaintiff, it did note that "[w]e cannot speculate whether [defendants’] conduct would come under the "`confidential’ exception. […] That exception may exclude from the definition of a legal interception one made pursuant to consent of the original parties to the conversation." Id.
Another major challenge to admissibility may be the underlying technology or methodology used to create the recording. For example, in the event a party is using a phone recording application, or application that may be on spyware or a malicious program. These programs may use so-called "ripping" methodology to access information, or they may be utilizing advanced browser extensions. The admissibility of such evidence may be challenged on the bases that they are "illegal intercepts" and "eavesdropping."
An individual may additionally try to challenge evidence on the basis that it may be inadmissible hearsay. Hearsay is a statement made outside of court, offered to prove the truth of the matter asserted. Hearsay, unless it falls within a narrow exception, is inadmissible.
In the event a party is utilizing recorded conversations as evidence in a civil antitrust case, and has e-mail communications between two individuals, attempting to use those recorded conversations as proof of their intentions, the other side may be able to argue "hearsay" based on the Rule 801(d)(2) of the Federal Rules of Evidence. This rule covers a statement of a party offered against the party in action by their agent or servant on a matter within the scope of the relationship.
The Importance of Authentication and Integrity
The admissibility of recorded conversations in a court of law hinges significantly on the ability of the party entering the recordings to authenticate their origin and ensure their integrity.
Authentication is the process by which a party establishes that a piece of evidence is what it purports to be. In the context of recorded conversations, this generally involves demonstrating that the recording is an accurate and unaltered version of the original conversation. For example, if you recorded a conversation on your phone, you need to demonstrate that the recording was not altered or tampered with after the fact. In contrast, if your phone was hacked and the conversation was recorded through malicious means, the integrity of that recording may be called into question.
Methods of authentication for recorded conversations vary by jurisdiction, but they can include testimony from the recording party or third-party witnesses who were present during the recorded conversation. It may also involve authentication by an expert in audio recording technology and analysis.
Once the authenticity of the recording has been established, the party must also demonstrate the integrity of the recording. This refers to the assurance that the recording has not been altered, manipulated, or modified in any way. If the court believes that the recording has been altered in some manner, they may decide not to admit it into evidence. Additionally, violating privacy laws during the recording process can also jeopardize the integrity and admissibility of the recording in court.
If recorded conversations are not properly authenticated and their integrity is not sufficiently established, they may be excluded from evidence. In many cases, even if a recording is deemed authentic, it may still be deemed inadmissible due to violations of privacy laws during the recording process. A Florida statute, for instance, states that it is unlawful for a person to intercept any wire, oral, or electronic communication without the consent of at least one of the parties involved in the communication. Where the recording was made without the consent of the other party, it very likely will be excluded from evidence, regardless of whether the conversation was properly authenticated and its integrity was established.
In conclusion, the authentication of recorded conversations and ensuring their integrity are crucial to their admissibility in court. Parties seeking to enter recordings as evidence must be prepared to demonstrate both authentication and integrity to maximize the chances of having their records accepted.
Damages that Are Due to the Use of Illegally Recorded Evidence
The repercussions for entering illegally obtained evidence can have broad legal implications, including but not limited to potential civil and criminal liability for parties and attorneys involved. When the evidence of a core claim is based on an illegal recording, the party or attorney may be subject to ethical scrutiny related to charging a case based solely on the inadmissible evidence. This is particularly true in criminal cases where evidence is the client’s sole support of an alibi or other claim. Furthermore, even if the attorney neither entered the evidence nor consented to its use, if he/she is both aware and comfortable with the evidence, it raises questions of counsel’s ethical obligations to his/her client and the court. Additionally, in states like Florida and other mutually consent states, civil liability may result against a party who enters a recorded conversation in which the other party did not consent to the recording . Civil liability does not mean that a plaintiff will win a money judgment; rather, a civil suit is a way for an injured party to seek justice, perhaps in the form of compensation, because of a wrong that has been inflicted. In other words, the damages are awarded in a personal capacity as opposed to a criminal conviction which is aimed at the public at large seeking justice on behalf of society. Even if the evidence itself is inadmissible, the evidence may also lead to admissible evidence, unless no exception applies. For example, if the illegality of the tape may lead to new evidence, such as when the tape may allow an investigator to discover a new witness or lead to a new piece of discoverable physical evidence, the court will often find, based on the independent source exception, that the taint has been purged in finding that the new information from the tape may enter into evidence under certain circumstances.