Surreptitious Recordings: Case Review
Surreptitious Recordings
During a patrol routine, a vehicle was stopped for ignoring the stop sign. There were two male adult males occupying the vehicles. After confirming that the vehicle in use was indeed stolen through V.I.N and license plate check, the subjects was arrested. Apparently, there were no questions being asked before the arrest and the Miranda Rights was not recited to the subjects even after they were placed at the back of the patrol car. In addition, before proceeding to assist in searching the stolen vehicle before it was towed and impounded, a voice recorder was turned on. Apparently, after the search procedure was done, the voice recorder was played back and revealed the subjects talking about how they stole the vehicle. Despite the fact that their tongue about their offense caught the subjects, the recorded conversation cannot be used and accepted in the court as a legal evidence to prosecute the subjects and or even as the sole basis to press charges.
Analysis
The term surreptitious recordings is defined as a recording of statement or conversation that occurs wherein one member of a party have consented to the recordation (Cobar.org, 2003). Any individual or law enforcer for this matter is not allowed under any circumstances to record conversation of another party regardless of the reason or for investigation purposes. In the given scenario, there were several protocols that were violated in by the police officer apart from recording the subject’s conversation in the back seat. For example, upon determining that the car was stolen and declared arrest of the subjects, law enforcers are required by the law to state the Miranda Rights to the subject because it is mandated that any individuals being placed on arrest need to understand and know of their fundamental rights under the constitution.
Regarding surreptitious recordings, it was established from the scenario that the law enforcer intentionally turned on the recording device upon exiting the patrol vehicle. If the intention of the law enforcer is to capture the subjects’ confession via audio and use it as evidence, it is apparently illegal due to the fact that the subjects did not expressed consent to the recordation (Doyle, 2012). Therefore, the law enforcer as legal evidence cannot use the recorded conversation of the subjects. This is because the Federal Law on Electronic Communications Privacy Act of 1986 or ECPA, 18 U.S.C §§ 2510-2522 stipulates and requires that at least one of the involve member of the party should provide consent to the recordation. However, in the given scenario, none of the arrested subjects have provided consent to the law enforcer. In addition, evidentiary issues surrounding surreptitious recordings constitutes significant barriers before it can be offered into evidence (Fishman, 2006). Furthermore, it was established that the recording was made without consent. Therefore, it constitutes a Federal and State violation of the law on communication’s privacy, thus making the recorded evidence inadmissible. Any person in contemplation on the evidentiary of the surreptitious recording should first consult an attorney, provided that the recording was made legally with the party’s consent. The aforementioned Federal statute was also adopted in the state level. The New York Penal Law § 250.05 for example prohibits mechanical overhearing conversation as demonstrated in recorded conversation (Merkel, 2011). Furthermore, when a conversation took place without the party’s awareness that they were being recorded it constitutes violation of the aforementioned state law and by extension, the Federal law. Whether or not the recorded conversation is to be used as evidence, the law would still render it inadmissible as stipulated in U.S.C. § 2515; CPLR 4506 (Merkel, 2011). Moreover, provided that the recording of the conversation was done legally it will still be inadmissible due to Rule 901 of the Federal law regarding evidence authentication.
References
Cobar.org (2003, July 19). Surreptitious recording of conversation or statement. Retrieved June 4, 2013, from http://www.cobar.org/repository/Ethics/FormalEthicsOpion/FormalEthicsOpinion_112_2011.pdf
Doyle, C. (2012). Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation. Congressional Research Service, 7(5700). Retrieved from http://www.fas.org/sgp/crs/misc/R42650.pdf
Fishman, C. S. (2006). Recordings, transcripts, and translations as evidence. Washington Law Review Association. Retrieved from http://digital.law.washington.edu/dspacelaw/bitstream/handle/1773.1/272/81washlrev473.pdf?sequence=1
Merkel, S. (2011). Surreptitious recording and its implications. The Daily Record. Retrieved from http://www.wolfordfirm.com/wpcontent/themes/wolfordfirm/inc/Surreptitious-recording-and-its-implications.pdf
