Legal Audio Recording

In both Alabama and Arizona, it is legal to record a conversation with the consent of one person who is a party to the conversation.

Recorded Audio may be used to:

  • Establish the Truth: Divorce Investigations, Inc. has been involved in 3 cases where audio recordings were produced as evidence to exhonorata the husbands who were falsed accusated of domestic violence. In all cases, in appeared that the wives sought to manipulate and misuse the criminal justice system to their advantage.
  • 1. In the first case, a domestic dispute transpired between spouses. The arguement began inside the house. At somepoint in the arguement, the husband declared that he was leaving and removed himself into the front yard. The wife called 911; then, followed the husband into the yard where the arguement continued. Police arrived and, after assessing the situation, arrested the husband. Before being charged, the husband produced an audio recording of the arguement that supported his claim that his wife was the aggressor and that no battery had taken place. The husband was not charged.
  1. 2. In the second case, the husband maintained an audio recorder on his home telephone for the purpose of (illegally) eavesdropping upon his wife's telephone conversations during the course of their divorce. The husband returned home late one evening find his wife locked in a bathroom. From the secure confines of the bathroom, she called 911 and sobbed to the dispatcher that her husband had beaten her. The police arrived; and, after assessing the situation, arrested the husband. The husband was charged. After making bail, the husband retrieved the telephone audio recording and discovered that the wife had hired someone to beat her up. First, she had called a friend and said, "I need you to beat the sh_t out of me" to which the friend replied, "I can't do it, call this other girl..." The wife called the other girl and explained that she needed someone to beat her up. The last words on the tape were something like: "yeah, come on over, I'll beat the sh_t out of you for $30.00." While the husband was advised that he could not (officially) use the illegally obtained telephone recording to defend himself against the charges that arose out of the staged battery, he decided that the lesser of the two evils would be the criminal charge of eavesdropping, and turned himself in offering the illegally obtained audio recording as evidence of his crime. After hearing the tape, the prosecutor declined to prosecute either spouse for either offense.
  • 3. In the third case, the wife and her attorney kicked off the divorce case with a bang. The wife and her attorney prepared an affidavit accusing the husband of various forms of domestic violence, including marital rape. The magistrate copied the wording of the affidavit into a criminal complaint, verbatim, and brought charges against the husband, causing the husband to be arrested. At about the same time, a complaint for divorce was filed with an emergency petition requesting a Protection From Abuse order. The PFA was granted and the husband was physically removed from his home and instructed not to return. Almost immediately, the wife began violating the PFA by calling the husband and offering to drop the criminal charges if he would settle the divorce case. In a conversation recorded under legal circumatancel, the husband asked (paraphrased): "Why did you make up all lies about me and have me arrested?" to which she answered: "I needed some space and it was the only way I could get you out of the house." In the process of preparing his defense, the husband had virtually memorized the complaint, and had closely analyzed each accusation and related it to an actual event that had happened; but, that was not as serious as stated in the complaint. During the course of the recorded conversations, the husband recited to the wife several specific allegations and prefaceing them by saying: "You know I didn't do this" and "you know I didn't do that. The wife responded by affirming her husband's innocence and actually denied that she'd ever made the false allegations. Never having seen the actual criminal complaint, she did not realize that the criminal complaint was nothing more than each accusation she and her attorney had constructed, simply copied, verbatim. She claimed that her lawyer and the magistrate had "gotten it wrong" and having heard her story, they had "misquoted her". Armed with the tape, the husband's attorney was able to persuade the authorities to drop the criminal charges against the husband.
  • Prove Outrageous Behavior such as threating or menacing communication, verbal abuse, rage, fits of anger, etc. ; or, the absence of such behavior.
  • Preserve and/or Clarify such things as a promise, an admission of guilt, or a conversation with a minor child just after a custody exchange where the child is forthcoming with words and emotions that needs to be preserved.

Basically, it comes down to Assertion vs. Fact.

If, based on anything you've read so far, you foresee the need for such a recording, here are a few tips:

  • Buy the Recorder Before You Need it. Don't wait till the last minute. Domestic issues escalate quickly. I've had too many clients who've told me that a certain thing was said; and, I have asked: "did you get that on tape?" Very few have said yes.
  • Familarize yourself with the Controls - Read the instructions and experiment with settings. Practice manipulating the controls, setting the functions such as record speed, voice activation, record volume level, internal vs. external microphone, etc.
  • Experiment with Placement - Hide the recorder and/or covert mic in different places and in different ways and experiment to learn the capabilities of the recording system with regard to picking up sound in various locations under various conditions. Don't forget to factor in any background noise that might present at the time of the recording; but, might not at the time of the experiment, such as a TV or a fan. If the recording is to be made in a vehicle, tests should be done at speed.
  • Manage Background Noise - It is of paramount Importance to limit background noise to the extent possible, and/or to choose and position the microphone to compensate for background noise. In my experience, the worst enemy of a voice recording is the presence of other randomly occuring human voices. A recording made from across a dining table in a quiet restaurant is difficult. Add 30 talkative people and the recording will be rendered forever unintelligible. On the other end of the spectrum, a microphone hidden behind the headboard in a quite bedroom would capture pillow talk between spouses quite nicely.
  • Covert Microphone - The audio recorder will probably be of no use if seen. Consider buying a covert microphone. Covert mics come in many shapes and forms and are readily available on the internet. If you are serious about good audio, plan on buying a few and testing them to cull out the junk.
  • Tuned/Filtered Microphone - Some microphones incorporate circuitry that filters out noise that is outside the narrow audio spectrum of the human voice. Such microphones make it possible to record intelligible audio in spite of some kinds of background noise. I've used them successfully to record conversation in a room where loud music was playing and in a car where the window was partially rolled down while traveling at interstate speeds.
  • Earbud Microphone - This ingenius little device plugs into the external mic jack of any audio recorder and enables you to record both sides of a conversation on your telephone. You place the tiny mic in your ear canal and plug the other end into the recorder. Use the telephone in the normal manner by holding the handset up to your ear. The microphone hears your voice because it is positioned in your ear canal and it hears the other side of the conversation because you are holding the handset up to your ear.
  • Covert Wrist Watch Recorder - The Mp3 wrist watch is capable of recording conversation. By virtue of being on your wrist, it is easy to postion the microphone for best reception on a continuing basis. Be forewarned though. I've never seen such a watch that I wouldn't recogized instantly as a wrist watch capable of recording conversation. Such a recording watch would be useful to record conversations with persons who are not technophiles. I used mine to record the walk thru portion of a real estate transaction where I anticipated promises being made regarding the punch list.
  • Be Wary of Voice Activation (Vox) - Voice Activation Circuits have a nasty habit of clipping the beginnings of conversations. Other Vox circuits are overly sensitive, begin recording too early, and exhaust themselves prematurely. Factor in such limitations.
  • Consider Battery Life - When advertising the capabilities of a digital audio recorder, much attention is paid to the recording duration of the unit. Consider battery limitation. In reality, a recorder may be able to record 180 hours of continuous audio, but the batteries might only last for 14 hours. Unless specifically designed otherwise, most recorders drain the batteries even when they are sitting idle in the voice activation mode.

Illegal Audio Recording

It is not legal to record a conversation if you are not a party to the conversation. You cannot, therefore, hide an audio recorder in a room, on a car, or on a telephone line, leaving it to record someone else's private conversation.

Never the less, spouses record each other with alarming frequency. The is because most states don't prosecute eavesdropping when it is carried out by one spouse against the other spouse. The Feds are a different story. They are likely to show interest in prosecuting any case where eavesdropping able to be proved.

Law enforcement authorities are always interested in prosecuting anyone who violates eavesdropping laws for compensation. Eavesdropping is the protected domain of law enforcement. Even the most powerful people and entities in our society can be brought down by words that are spoken.

The most common form of recording is on residential land based telephone lines. Radio Shack sells inexpensive equipment that is designed to record telephone calls. Almost anyone can plug such a recorder into a phone jact and facilitate covert recording. Industrious spouses who are handy with tools or have a few dollars to spend may install a phone jack in almost any hidden place for the purpose of concealing the equipment.

Analog Audio Recorders -----------------

  • record audio onto a magnetic casette tape
  • Where access is not difficult or risky, analog recorders allow the user to simply swap and label the tapes periodically, providing for quick and simple chronological management of recordings
  • recordings must be played back in linear fashion, at or near real time
  • analog recorders are typically larger in size than digital recorders

----Consumer Grade

  • cost $80.00 - $150.00
  • are limited by a duration of approximately 1 hour
  • are larger in size than digital audio recorders

-----Purpose Built

  • Cost 150.00 - 450.00 and up
  • Extended Duration Recorders may utilize gear reduction to slow down tape speed and increase the recording duration
  • Entended Duration Recorders often lack the ability to play back the tape; necessiting thepurchase of an Extend Duration Player
  • may have incoming and outgoing Caller ID built in
  • may allow recording multiple lines simultaneousl

Digital Audio Recorders --------------------

  • records onto a tiny silicon chip
  • cost

 

 

 

 

 

Alabama Law: One Party Consent

Ala. Code § 13A-11-30, -31: Unlawful eavesdropping is defined as the overhearing or recording of the contents of a private communication without the consent of at least one person engaged in the communication. The statute has been interpreted as creating a right to privacy in communications — specifically, a right not to have communications overheard, recorded or disclosed without consent. Ages Group v. Raytheon Aircraft Co., 22 F. Supp. 2d 1310 (M.D. Ala. 1998).

Criminal eavesdropping involves the intentional use of "any device" to overhear or record communications, whether the eavesdropper is present or not, without one party's consent. Criminal eavesdropping is a misdemeanor. Ala. Code § 13A-11-31. Knowingly divulging information obtained through illegal eavesdropping is a misdemeanor as well. Ala. Code § 13A-11-35. Misdemeanors in Alabama carry a maximum jail sentence of one year. Ala. Code § 13A-1-2.

While hidden cameras are not expressly addressed, it is a misdemeanor to engage in "criminal surveillance," defined as secret observation or photography while trespassing on private property. Criminal surveillance does not include observation on a public street. Ala. Code § 13A-11-32.

Arizona Law: One Party Consent

Ariz. Rev. Stat. Ann. § 13-3005: Interception of a wire or electronic communication by an individual who is not a party, without the consent of someone who is a party to the communication, is a felony. The electronic communications referred to in the statute include wireless and cellular calls. The overhearing of a conversation by an individual who is not present, without the consent of a party to that conversation, is also a felony. Both violations are classified as "class 5" felonies, which are the second least serious felonies in Arizona.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of "oral communication," Ariz. Rev. Stat. Ann. § 13-3001.

A state appellate court has held that a criminal defendant's contention that police officers violated this law by recording their interviews with him without his consent was meritless because the defendant had no reasonable expectation of privacy in a police interview room. Arizona v. Hauss, 688 P.2d 1051 (Ariz. Ct. App. 1984).

In addition, a state appellate court has held that a mother who had a good-faith belief that it was necessary and in the best interests of her child may consent to taping the child's conversation with an alleged child molester. State v. Morrison, 56 P.3d 63 (App. Div. 1 2002).

It is unlawful for a person to photograph or film a person without consent while the person is in a restroom, locker room, bathroom or bedroom or is undressed or involved in sexual activity. Ariz. Rev. Stat. Ann. § 13-3019.