Does privacy law apply to recorded conversations?

Divorce Attorney Angela FoyQuestion:

My ex-girlfriend made certain allegations about me in her home. Normally I think this would fall under the expectation of privacy law. However, her parents were in the room when she made her allegations.

Does this still count as expectation of privacy? If I recorded these allegations, would this be admissible evidence?

Answer:

It depends on what these allegations are and your actual circumstances including where you are at in your case. In general, the expectation of privacy refers to whether you expect the statements to be made in private, versus them being recorded and made public later. I do not practice in your jurisdiction, so I can only speak in general based on my experience.

In general, the expectation of privacy law has come about from criminal matters. Some strict rules of evidence then must be followed for recorded evidence to be used to convict someone.

However, in family court, the standard and burdens are different. The court in a custody matter is generally focused on the child’s best interest, although constitutional concerns are still relevant to protect the parents. This may alter the balance between relevance to the matter and the parent’s expectation of privacy.

Additionally, this type of evidence may still be considered indirectly. While recordings may be kept out of court, the guardian ad litem or a social worker conducting a custody study may still consider the recordings as evidence in coming to their recommendations.

It does seem unusual that you would want to present evidence of allegations about you. There are other evidence objections and exceptions that may come in to play depending on how the matter is tried. For example, the statements are hearsay, but they may be admissible as an admission by a party opponent depending on what the actual statements are.

How useful these recordings may be, and whether they are admissible, depend on the circumstances of your case and the specific rules in your jurisdiction. You should consult with a domestic litigation attorney in your jurisdiction to determine your options.

Cordell & Cordell has attorneys located nationwide, and they would be happy to discuss your case with you.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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