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Old 09-27-10, 06:55 AM   #1
On Any Sunday
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1st ammendent question: can you record a conversation and use it as evidence?

Slightly complex first ammendment question: Can a voice recording made with a digital voice recorder/micro-cassette tape be accepted as evidence in a California court? Or is it against the law to record a conversaton? Scenario(s): these recordings were not made on the telephone. I need to be clear that in both cases a telephone was not involved. In both cases communication between the two parties was done in person and/or face to face.
In scenario #1 the conversation took place outdoors on public property where it is not reasonable for any one person to expect any measure of privacy. In other words it was made in a place where any person can come and go 24/7/365.
In scenario #2 the exact same dynamic is in place though with a slightly different set of circumstances: that conversation was made indoors in the hallway of a building, a building that is considered to be private property (as an example say for instance the hallway in a hotel, but NOT in a private room). As in scenario #1, it would be reasonable to conclude that a person would not or could not expect to receive any measure of privacy because inhabitants and/or employees of the hotel could come and go at will 24/7/365. Again, both questions pertain to the state of California.
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Old 09-27-10, 07:30 AM   #2
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I believe the recordee must be informed that they are being recorded in order for it to be legal.
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Old 09-27-10, 07:45 AM   #3
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It depends on the state in which one lives.

Some allow it with no restrictions, others require both parties to be informed and agree.

Federal law permits it so long as at least one party agrees.

California requires both parties to consent.

Just re-read the original post, and saw the caveat about the telephone. Went back and re-read the link I posted about California law, and saw this:
Quote:
California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation.
It seems there's no distinction between telephone conversation or non-telephone conversation to the State of California.

Here's more:
Quote:
If you are recording someone without their knowledge in a public or semi-public place like a street or restaurant, the person whom you're recording may or may not have "an objectively reasonable expectation that no one is listening in or overhearing the conversation," and the reasonableness of the expectation would depend on the particular factual circumstances. Therefore, you cannot necessarily assume that you are in the clear simply because you are in a public place.

If you are operating in California, you should always get the consent of all parties before recording any conversation that common sense tells you might be "private" or "confidential." In addition to subjecting you to criminal prosecution, violating the California wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Cal. Penal Code § 637.2.

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Old 09-27-10, 08:02 AM   #4
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Scenario 1: Maybe legal.....no reasonable expectation of privacy in many but not all cases.

Scenario 2: Wiretapping laws of the state of residence apply.
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Old 09-27-10, 08:29 AM   #5
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This thread is why I communicate with incoherent mumbling, hand signs, head motions and body language.
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Old 09-27-10, 08:31 AM   #6
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This thread is why I communicate with incoherent mumbling, hand signs, head motions and body language.
I use hand signals....like the one in my avatar.
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Old 09-27-10, 09:01 AM   #7
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As others have said, it depends on the state. We just went through this at work. Some states required both parties to know; some states require that at least one party knows. I don't think they are any states where nobody needs to know, though.

Just repeating what others have said...
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Old 09-27-10, 12:45 PM   #8
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Depending on why you are asking this question, you should seek the advise of a lawyer on what the use of the recording might be. And what the ramifications of making such a recording could be to you, should their existence come to light.
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Old 09-27-10, 11:07 PM   #9
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Quote:
Originally Posted by On Any Sunday View Post
Slightly complex first ammendment question
This isn't legal advice, so you should consult local counsel, but in general--
  • Your two hypotheticals don't necessarily raise a 1st Amendment issue (presumably, free speech), unless a governmental entity was one of the parties or made the recording. The Bill of Rights' individual freedoms apply only as against government action; you don't suggest any government involvement in the conversation.
  • The parties can speak as freely as they want under both of your scenarios; the issue is whether permission is needed to record the other party's speech.
  • California's rules of evidence and procedure might distinguish between the intended forum (e.g., criminal charge or domestic relations/child support case) and the purpose for which a recording is sought to be introduced (the clearest is in support of an allegation that an illegal recording was made).
  • Some states are highly restrictive to protect claimed beneficial state or public interests (e.g., Illinois currently outlaws taped conversations with law enforcement officers--that's an actual 1st A. case currently being litigated; e.g., California has very stringent publicity rights), but invasion of privacy and/or dissemination of personal information is generally considered a tort that can be brought in many states.
  • One can hold a private conversation in a public venue, as it may still be possible to ensure that people not involved in the conversation cannot overhear (e.g., whisper in the other party's ear, such as attorneys do with their clients during depositions or in courtrooms during trials; conversation in a public library room behind a closed glass door; on a public park bench not within any other person's listening distance).
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Old 09-27-10, 11:18 PM   #10
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IANAL, but if this is a criminal case we are talking about, I believe that if such a recording was to find its way into the hands of the police or prosecution, they could still use it as evidence. They didn't make the recording and didn't violate anyone's rights, so they are allowed to use it as evidence. This sounded crazy to me when I first heard it, but perhaps the lawyers here can explain further.
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Old 09-28-10, 07:38 AM   #11
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Dumb question, but hwowdo you prove the person you recorded is said person? Without video? Would you have to hire a speech expert to testify?
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Old 09-28-10, 10:28 AM   #12
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^You may just have to convince the jury that it's the same person, which may or may not be hard depending on the crowd.
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Old 09-28-10, 01:36 PM   #13
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Dumb question, but hwowdo you prove the person you recorded is said person? Without video? Would you have to hire a speech expert to testify?
Voice-analysis software is very sophisticated. It can overlay unique-patterns between two difference sources and make or disqualify matches with high certainty. This is one way the NSA's Predator software can sift through billions of messages a day.
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Old 09-28-10, 01:39 PM   #14
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in related news, a Harford County Circuit Court judge ruled this afternoon that a motorcyclist who was arrested for videotaping his traffic stop by a Maryland State Trooper was within his rights to record the confrontation.: http://weblogs.baltimoresun.com/news...ping_case.html
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Old 09-28-10, 03:57 PM   #15
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In Illinois if you are caught recording a cop without permission it's a class 3 felony for the 1st offense, mandatory jail time. Record a regular citizen without permission , it's a class 1 felony.
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Old 09-28-10, 04:25 PM   #16
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Originally Posted by skijor View Post
I believe the recordee must be informed that they are being recorded in order for it to be legal.
In California, the other party must first give informed consent. In other words, you must ask/state "I am going to record this conversation, do I have your permission?" If the person says anything other than "yes" it cannot or will not be used as evidence; in fact, it must be excluded by the Court. And you may/will be held liable for illegal recording/wiretapping. Be careful what you do.

"Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.

Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent to tape, and could not naturally overhear.

Federal law and most state laws also make it illegal to disclose the contents of an illegally intercepted call or communication.

At least 24 states have laws outlawing certain uses of hidden cameras in private places, although many of the laws are specifically limited to attempts to record nudity. Also, many of the statutes concern unattended hidden cameras, not cameras hidden on a person engaged in a conversation. Journalists should be aware, however, that the audio portion of a videotape will be treated under the regular wiretapping laws in any state. And regardless of whether a state has a criminal law regarding cameras, undercover recording in a private place can prompt civil lawsuits for invasion of privacy."
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Old 09-28-10, 07:46 PM   #17
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Slightly different twist. If the law makes it illegal, there is no law against taking "personal notes" of an interaction. Just because your written personal notes of an incident are exceedingly accurate based on the 100% recall provided by the recording should be immaterial. Officially there is no recording.

It is always something I have wondered about. A simple end around.
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Old 09-28-10, 10:45 PM   #18
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In Illinois if you are caught recording a cop without permission it's a class 3 felony for the 1st offense, mandatory jail time. Record a regular citizen without permission , it's a class 1 felony.
Interesting... I wonder if the cops use dashboard cams.

Equal protection and all....
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Old 09-29-10, 02:20 AM   #19
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Originally Posted by Tom Stormcrowe View Post
Scenario 1: Maybe legal.....no reasonable expectation of privacy in many but not all cases.

Scenario 2: Wiretapping laws of the state of residence apply.
The Feds can usurp state law for their own purposes as they see fit...
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Old 09-29-10, 05:52 AM   #20
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Originally Posted by monogodo View Post
It depends on the state in which one lives.

Some allow it with no restrictions, others require both parties to be informed and agree.
It's probably worth checking the exact provisions where you live.

I find it difficult to believe that a large number of states would outlaw security monitoring in banks, stores, etc as criminals would not agree to be recorded.
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Old 09-29-10, 08:54 AM   #21
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Originally Posted by skiahh View Post
Interesting... I wonder if the cops use dashboard cams.

Equal protection and all....
I think it's a different issue if the camera location is known (as in a police car or bank). Think of all the videos taken by cyclists with helmet cameras, or videos people have captured with their cell phones. Helmet cams and cell phone video have been used in criminal trials.
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Old 09-29-10, 09:34 AM   #22
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I think it's a different issue if the camera location is known (as in a police car or bank). Think of all the videos taken by cyclists with helmet cameras, or videos people have captured with their cell phones. Helmet cams and cell phone video have been used in criminal trials.
There just has to be a list of reasonable exceptions. Otherwise, I could see it now -- some dope addict breaks into a house, assaults someone and steals a bunch of stuff. The action is caught on a webcam. Evidence gets tossed out because dope addict did not agree to be videoed and home owner is charged with a felony.....
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Old 09-29-10, 11:31 PM   #23
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I think it's a different issue if the camera location is known (as in a police car or bank). Think of all the videos taken by cyclists with helmet cameras, or videos people have captured with their cell phones. Helmet cams and cell phone video have been used in criminal trials.
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There just has to be a list of reasonable exceptions. Otherwise, I could see it now -- some dope addict breaks into a house, assaults someone and steals a bunch of stuff. The action is caught on a webcam. Evidence gets tossed out because dope addict did not agree to be videoed and home owner is charged with a felony.....
Video recordings aren't prohibited by these laws, only conversations. (The easy fix, should a camera also record the sound of a conversation: playback sound would be muted and not allowed.) Also, the laws don't prohibit recording all conversations, only those where consent is not given (by one or all parties, depending on the jurisdiction) or cannot be reasonably inferred from the circumstances.
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Old 09-30-10, 05:42 AM   #24
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Interesting... I wonder if the cops use dashboard cams.

Equal protection and all....
, [Bufford Pusser on] yer not from around here, are ya boy![Bufford Pusser off].

Yes, in Illinois cops have dashcams, yes, the cops know the law and will arrest anyone who records them. It's not clear if it's illegal if you don't record audio (someone needs to get arrested, charged with a class 3 felony, then fight it in court). Any businesses with security cams have very clear posted signs stating you're being recorded, I assume this takes care of consent.
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