Can You Use Secret Recordings As Evidence In A Divorce Case?

Law Articles

The high-quality microphones on modern cell phones and sheer number of recording apps make it easy to surreptitiously capture conversations and other audio without anyone knowing. Having a USB device filled with clips of your ex saying something incriminating or making certain promises doesn't automatically mean it can be used in court, though. Here's what you need to know about using secret recordings in your divorce case.

Notification Requirements

The very first question you'll have to answer about your secret recordings is whether you obtained them legally or not. Almost all states and the federal government have laws dictating what is considered a legal recording, and one of the rules involves notifying people they are being recorded.

Approximately 38 states and the federal government have one-party consent laws. These laws allow people to record in-person or phone conversations as long as one person involved in the communication consents to it. So if you're talking to your ex-spouse on the phone, you could record what he or she says without asking permission because you are the "one party" who knows about and consents to the action.

However, the other states require all parties to the conversation be notified they are being recorded and consent to being captured on tape. This means you must tell (or have told) your ex-spouse you are recording your conversation prior to doing it. Failure to adhere to notification laws will typically result in the secret recordings not being admissible as evidence. In fact, recording someone without permission could open you up to a lawsuit, depending on how it is used and who has access to it.

Because the laws are not the same in every state, you have to be careful if you and your spouse live in different areas. You may live in a state with one-party consent laws, but you would need to comply with the laws in the state where you spouse lives if it requires multi-party consent to avoid legal problems and ensure the recording can be used in court.

Evidence Rules

Another issue you'll have to deal with after proving you obtained the recording legally is showing the court it is authentic. Courts have evidence rules that apply to recorded materials to ensure the audio clip is reliable and true. Although the exact rules will vary from state to state, in general you must show:

• The person speaking is your ex and not an impersonator
• The audio captured represents the conversation in an accurate manner
• The recording was not altered or tampered with
• The device used to record the conversation could do so in an accurate way

To be admissible in court, the recording must meet all the state's evidence rules. For example, if the audio doesn't accurately portray the conversation due to environmental elements (e.g. background noise), the court may not let you use it even though you obtained the recording legally and it meets the other requirements.

Alternative Uses of Recordings

Even if the court rules the secret recordings inadmissible, it may be possible to use them in other ways. The rules for admitting evidence may not be so strident at informal meetings and negotiations. For example, you soon-to-be ex-spouse may have made a promise to give you an asset. You could use the recording at a settlement negotiation as proof he or she made that statement, which may result in you getting the item.

Using secret recordings can help your case, but there are several legalities you must take into consideration. Discuss the issue with your attorney from a place like Gordon Liebmann Attorneys at Law. He or she can provide you with the information you need to use the recordings to benefit your case and avoid legal problems down the road.

Share

25 October 2016