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My fiancee is going to family court to get joint custody of his son. He has taped several phone conversations with his ex-girlfriend, where his ex states she is going to have other people kill him, that he will never see his son again, and that she is sleeping around with cops so she will beable to get him arrested for anything. Just awful things like that. When he goes to court could he use the tape recorder as evidence for his case, eventhough she didn’t know she was being recorded, but she was on speaker phone while the tape recorder was recording and I heard the whole conversation.
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With out a court issued approval it will not be admissible evidence and who ever recorded it with out the permission of the person recorded could find them selves in a lot of trouble.
Your testimony will probably be more acceptable than these recorded conversations. Your fiancee probably broke the law in recording the conversation, but that’s almost never prosecuted. Hopefully he has an attorney and has shared this information with attorney. He should get psych eval of girlfriend and children.
I would highly recommend that he get rid of the tape and that you never admit that you overheard the conversations. N.Y. Penal Law §§ 250.00, 250.05 makes it a class E felony to record or listen to a conversation without the consent of the other party.
No state permits recordings of this nature to be used as evidence in court.
Note: Two the 2 "lawyers" who think it is legal in NY, I highly suggest you re-read the penal code that states "N.Y. Penal Law §§ 250.00, 250.05: It is a Class E felony to overhear or record a telephonic or telegraphic communication if one is not the sender or receiver, or does not have the consent of either the sender or receiver. It also is a crime for someone not present to overhear or record any conversation or discussion without the consent of at least one party to that conversation."
It’s been on the books for about 10 years. I would have thought you would have heard about it by now in your capacity as a "lawyer". How odd.
Note to Kelli: There are even problems when someone with a legal background attempts to interpreted the laws. By the way, the citation you provided deals with phone conversations where a minor is one of the two parties involved.
Having said that, we don’t need to get into legal terms of art. The definition of the terms is spelled out in the law itself. I just went back and re-read the statute and it would appear that you were right. The law states "EITHER the sender or the receiver." Many states, including California where I am based, require consent of BOTH parties, but New York only requires consent of ONE party. I read the statute too quickly and missed that part. Serves me right for answering questions too quickly and not going back to study the statute first.
For the recording of a telephone conversation to be admissable in court, both parties have to be informed that the conversation is being taped.
However, you can testify as a witness against her, or you can tell her the next time she calls that she is being recorded and continue to tape the conversation. Then give a copy of ALL the tapes to your finacees attorney and let them advise you how best to proceed.
No, she needs to be informed that she is being recorded and agree to being recorded, otherwise it is not admissable as evidence. I wish it didn’t work that way though. The only reason the law is set up that way is so fat cats can’t get caught doing things illegally. The second you say you are recording the conversation, they will not say what they planned to say and sugar coat it. Trust me, if the law allowed it, my last employer would be paying me a hefty sum of money for the way they treated me. lol
TOTAL BS!!!!!
Only ONE person in the conversation needs to be informed.
If NOBODY knows, the cops need a warrant.
Jeese, you idiots! How do you think the cops get drug dealers and other crooks? Some stooge gets them to say something on the phone.
In the United States:
YOU CAN TAPE ANY CONVERSATION THAT YOU ARE PART OF.
IT IS NOT ILLEGAL TO DO SO.
YOU CAN USE IT AS EVIDENCE.
(What, you think you can just be threatened ,have someone commit crimes on the phone and WE have no rights to protect ourselves?)
In response to whitefangz post:
The problem with people interpreting law when they do not have a law background is that they often get it wrong. Yes, the New York penal law states that the sender or receiver must give consent to being tape recorded. However, and this is the really IMPORTANT PART, "sender" or "receiver" as used in this section is a "legal term of art" that simply refers to one of the two people part of that conversation.
Legal terms of art are often used by legal professionals and have a precise meaning in a particular subject area. Knowing the terms of art and a practice area will save time and effort in your research.
Examples of terms of art include: "blue sky laws" (refers to state securities laws) and
"TINA" (acronym for the Truth in Negotiation Act).
This link: http://www.newyorkdivorceattorneyblog.com/2008/04/index.html briefly discusses what I’ve just stated with regards to the legalilty of tape recordings about midway down the article.
There’s a reason one has to pass the bar before he or she can practice law in a given state. Finally, if you still have some doubts, you may wish to seek the counsel of or retain a New York barred attorney. Good luck.
Original Post
witwwatts is absolutely correct. The law in New York states that only one person party to the conversation needs to know that it is being recorded. If, for example, you tape-recorded the conversation between your fiancee and his ex-girlfriend and neither of them knew that their conversation was being recorded then you’ve broken the law.
In this case, your fiancee, as party to conversation, can tape it and can use it in a court of law, and I’d highly suggest he does.
BTW, the tape is the best evidence of this conversation. Although you state you heard it as it was on speaker phone, you may be viewed as a "biased" witness. However, you would be the best person to "validate" or authenticate the tape, thus helping to get it introduced as evidence without use of expert testimony that it was her voice, and has not been altered, etc.
Additionally, and I am not suggesting that he does but this could also be used in custody proceedings if ever sought sole custody to help establish her motives and/or turpitude as a parent.
Good Luck to you both.