WE CARE LEGAL SERVICES
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By Jan Grossman, Esq.
Nothing turns people into modern-day versions of Sherlock Holmes faster than becoming involved in a divorce, custody or support dispute. Whether it’s secretly recorded conversations of “infidelity” or “proof” that their Ex is a “bad parent” or their deadbeat spouse is working under the table, Smartphones and other similar technology have turned every Average Joe or Average Jane into private investigators. At WE CARE LEGAL SERVICES (855-LAW-FAMILY), we regularly have client-sleuths march triumphantly into our office like children on Christmas morning bearing “gifts” of electronic “evidence” that they believe will prove their case. Depending on how they acquired such evidence, we sometimes have to be the bearer of bad news that not only is their secretly recorded “smoking gun” inadmissible as evidence, but disclosing such evidence may even subject our clients to arrest and criminal penalties.
“But wait a minute,” you say, “smartphones and other cameras are everywhere, and you’re telling me that my video of [fill in the blank] my wife meeting her boyfriend, my kids’ alcoholic father at the beer store again, or my ex talking to his boss about all of the under-the-table work he is going to do for him] won’t be allowed in court?” As is often the case in legal situations, the short answer is: it depends.
Each state has its own laws, otherwise known as wiretapping laws, covering secret recordings. Generally speaking, most video (no sound) recordings are legal and admissible as evidence without the other person’s consent, as long as the other person had no reasonable expectation of privacy in the given situation. (Generally, one has an expectation of privacy in their bathroom but not in a public place.) The tables turn, however, if the video recordings include sound. Audio recordings are covered by both federal and state laws. Some states, like New York and New Jersey, allow audio recordings with the consent of only one party to the conversation (which includes the person doing the recording.) This means that if you live in one of these states and you surreptitiously record a conversation between yourself and your soon-to-be ex in which he threatens to hide assets from you, you may have a solid piece of evidence that will hold up in Family Court.
In our Commonwealth of Pennsylvania, the law requires the consent of all of the parties being recorded. Section 5703 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act governs recordings and other versions of “wiretapping.” This means that if you’re in Pennsylvania, you can’t legally record your husband’s conversation about trying to hide his bank account in the Cayman Islands unless all parties have consented to the recording. This is often referred to as “two-party consent,” even though technically every party involved must consent. If you do record the conversation without the consent of every party, you are potentially subject to a third degree felony. Also, your investigatory work was in vain as the recording is illegal and inadmissible in court. As a rule of thumb, voicemail messages are always admissible because the person being recorded always knows that he or she is being recorded; and you can always legally eavesdrop on a conversation and take notes because no electronic devices are involved in the preservation of the communication.
“So does this mean that in Pennsylvania I can’t record my neighbor coming onto my property and threatening me because he thinks my parrot is screeching too loudly?” Not exactly. In this case, you can simply notify the neighbor that you are recording him and if he chooses to remain on your lawn, the law will interpret his choice to remain as implied consent to the recording.
Things get trickier when Federal law is also implicated by some circumstance of the recording (for example, if the parties to the recording were in different states.) In that case, the person doing the recording could get a not-so-friendly visit from the FBI and would be subject to much stiffer penalties.
Because of the legal complexities involved, and the rapid nature in which this body of law is evolving, you should always consult your lawyer before surreptitiously recording anyone if your goal is to use the recording as evidence in court or disseminate it in any way. At We Care Legal Services (1-855-LAW-FAMILY), we’ve seen it all, and we are always available with a free consultation to answer any of your legal questions.
