Other Criminal Charges & Offenses Recorded Telephone Conversation

[Casey-Cayce]

Jurisdiction

New Jersey

I live in New Jersey, which is a "single consent" state in terms of recording a telephone call I make with another person, something I routinely do with clients. I'm currently involved in a civil case where transcripts of my call with a person in Florida are an exhibit in the case. This person is the defendant in the case involving settlement of my father's estate. What kind of liability might I be facing for having provided that transcript as evidence?

Thank you.

 

[doucar]

I live in New Jersey, which is a "single consent" state in terms of recording a telephone call I make with another person, something I routinely do with clients. I'm currently involved in a civil case where transcripts of my call with a person in Florida are an exhibit in the case. This person is the defendant in the case involving settlement of my father's estate. What kind of liability might I be facing for having provided that transcript as evidence?

Thank you.

Liability for what?

 

[Casey-Cayce]

Liability for what?

That's actually my question. What can the defendant's attorney do to me, in a retaliatory form if nothing else, for providing transcripts of this recording to our attorney?

 

[zddoodah]

I live in New Jersey, which is a "single consent" state in terms of recording a telephone call I make with another person, something I routinely do with clients.

What sort of clients? In other words, what is your profession? Regardless of the law, are your clients aware that you routinely record your calls with them?

I'm currently involved in a civil case where transcripts of my call with a person in Florida are an exhibit in the case. This person is the defendant in the case involving settlement of my father's estate.

Involved how? Are you a party to the case? If so, are you represented by an attorney? Is the case in state or federal court? In what state is the case pending? Is the person you mentioned in this sentence a current or former client? Why is there a defendant in a case relating to the settlement of a person's estate? Did the estate sue this person? Are you the executor of the estate?

What kind of liability might I be facing for having provided that transcript as evidence?

Without more information, the only thing I can point out is that Florida is a two-party consent state (Fla. Stats. section 943.03). If Florida law applies, a violation is a third-degree felony (as provided in sub-section (4) of section 943.03). It's also possible that the transcript could be excluded from evidence and, depending on your profession, you might face professional sanctions.

 

[Casey-Cayce]

I am in New Jersey, and the recording was made here. The case is being handled in Florida. It involves six siblings, all beneficiaries of my father's estate. One of the siblings has arranged to sieze his stocks account, valued at 280,000, contrary to the wishes expressed in his will. We—the other siblings—are pursuing reclamation of the money represented in those stocks. During a group telephone conference which included the defendendent who is in Florida, statements were made by the defendant that are of value to our case. Having recorded the conversation, I transcribed those sections and passed them to the attorney, who is also in Florida.

 

[doucar]

I am in New Jersey, and the recording was made here. The case is being handled in Florida. It involves six siblings, all beneficiaries of my father's estate. One of the siblings has arranged to sieze his stocks account, valued at 280,000, contrary to the wishes expressed in his will. We—the other siblings—are pursuing reclamation of the money represented in those stocks. During a group telephone conference which included the defendendent who is in Florida, statements were made by the defendant that are of value to our case. Having recorded the conversation, I transcribed those sections and passed them to the attorney, who is also in Florida.

The attorney in Florida would be the best one to ask,

 

[Casey-Cayce]

I guess the critical question, regarding this area of law, would be: if a person residing in a single-consent state records a conversation with a person in a non single-consent state, is the person recording legally obligated to make it known to the second?

 

[adjusterjack]

During a group telephone conference which included the defendant who is in Florida, statements were made by the defendant that are of value to our case.

The Florida statute that applies is 934.03(2)(d). Consent is not required if the person does not have a reasonable expectation of privacy. See 934.02 for the definition of "oral communication."

Statutes & Constitution :View Statutes :->2022->Chapter 934 : Online Sunshine

There is a fine line between expectation of privacy and no expectation of privacy which will affect the decision as to whether the recording is admissible or not.

Discuss that with the Florida attorney.

 

[zddoodah]

I'm going to note that you didn't answer a lot of the questions I asked, so that limits my ability to provide information.

During a group telephone conference which included the defendendent who is in Florida, statements were made by the defendant that are of value to our case.

So...it wasn't just you and your sibling on the call? Where were all of the participants to that call located?

Having recorded the conversation, I transcribed those sections and passed them to the attorney, who is also in Florida.

Whose attorney? Your attorney?

if a person residing in a single-consent state records a conversation with a person in a non single-consent state, is the person recording legally obligated to make it known to the second?

But it wasn't just the two of you, right? Things get messy with interstate calls - especially if more than two states are involved.

You didn't answer my question about whether you are represented by an attorney. If not, I suggest you consult with one.

 

[adjusterjack]

I guess the critical question, regarding this area of law, would be: if a person residing in a single-consent state records a conversation with a person in a non single-consent state, is the person recording legally obligated to make it known to the second?

There's a little more to it than that.

Depends on where you are going to use the recording.

If you are going to use the recording in the one party consent state, you don't need consent to record a conversation to which you are a party.

If you are going to use the recording in the all party consent state (Florida) you will need the consent of all the parties to the conversation. Unless it is happening where there may be no expectation of privacy, like in a conference call or zoom meeting. Keep in mind that there are criminal penalties as well as civil penalties.

 

[Tax Counsel]

I guess the critical question, regarding this area of law, would be: if a person residing in a single-consent state records a conversation with a person in a non single-consent state, is the person recording legally obligated to make it known to the second?

When making interstate calls, the safest thing to do is get the consent of the other party unless you know both states are one party consent states. The details of the particular call in question will depend on which state's law applies, and it is not automatic that the state where you are located would be law that governs this issue. If the call is governed by the law of that other state then it should be excluded from evidence since generally illegally obtained evidence is not admissible in court.

What the adverse party may legally do here is (a) file a motion to exclude the recording from evidence and (b) report you to the relevant state law enforcement agency in the two party consent state. The latter in most cases doesn't go anywhere, but the details of the call matter.

 

[PayrollHRGuy]

What the adverse party may legally do here is (a) file a motion to exclude the recording from evidence and (b) report you to the relevant state law enforcement agency in the two party consent state. The latter in most cases doesn't go anywhere, but the details of the call matter.

Is the OP in this case even trying to submit the recording into evidence?

I'm currently involved in a civil case where transcripts of my call with a person in Florida are an exhibit in the case.

 

[Zigner]

Is the OP in this case even trying to submit the recording into evidence?

Transcripts of an illegally obtained recording won't (shouldn't) be admissible.

 

[Tax Counsel]

Is the OP in this case even trying to submit the recording into evidence?

Either the OP or the adverse party is trying to do that, by way of a transcript of the recording. Whether the actual audio of the conversation or a transcript of a recording, if the call was recorded illegally it is generally not admissible as evidence.