Part 1: Audio Recordings
You may know that to make an argument in court, you must have proof. However, proof is not always easy to collect, especially when you may have to use some form of surveillance to collect it. Family law cases are very contentious. Every minute two parties spend in the household together can create possible evidence to be used in trial. As such, clients regularly have questions about rules of collecting such evidence.
One of the first questions I ask my clients when they send me potential evidence is, “How did you get this?” Depending on the source of the evidence, it may be problematic for the client to use the evidence. Unfortunately, I usually learn of mistakes my clients made after the evidence has already been collected. To prepare your case for family court, you need to collect evidence the correct way, and you should avoid attempts to document evidence that could be detrimental to your case. In this multi-part blog series, we examine a list of common methods of evidence gathering and pitfalls to avoid. In Part 1, we will review one of the most common forms of evidence—audio recordings.
An important note for this discussion—all of the forms of evidence we will review in this series are complicated. The rules and regulations regarding legality, propriety and evidentiary admissibility may vary based on the facts and circumstances in each situation. This series is intended to be a general overview of types of evidence which you should take great caution when collecting. If you have questions or concerns about evidence in your particular case, it is worthy of a detailed discussion with your lawyer.
Audio recordings are very common in divorce and custody cases, especially when the recordings support allegations of fault or misconduct. However, not all recordings are helpful, or even legal. The legality of audio recordings is a complicated matter that depends on the specific circumstances of each situation. Generally speaking, in Georgia, it is legal to record a conversation with another person if that person has knowledge of the recording or if that person does not have a “reasonable expectation of privacy.” Whether someone has a “reasonable expectation of privacy” is not as simple as it sounds, though it is safe to assume there is no expectation of privacy if the recording is made in public or if it is obvious others are around.
In addition, it is legal to record a telephone conversation with another person without that person’s knowledge as long as you are a party to the conversation. This is commonly referred to as Georgia’s “one-party consent rule.” Additionally, family law litigants who are living in separate households should be extra careful, especially if the opposing party is in another state, because that state may have a different rule that Georgia. Recording a telephone conversation to which you are not a party may not be lawful. The following sample scenarios demonstrate the difference between lawful and unlawful audio recordings.
Scenario 1: Wife wants to prove Husband forgot to pick up the child from school. Husband comes home and Wife turns on her audio recorder. She asks Husband why he did not pick the child up from school, and Husband states, “I was hanging out with my friend and I forgot.” That recording is legal and may be used by Wife against Husband at trial.
Scenario 2: Wife wants to prove Husband forgot to pick the child up from school. Husband calls the child on the home phone to apologize. Wife quietly picks up another receiver and listens in on the telephone call, recording the conversation without either Husband or the child being aware of her presence on the line. She records Husband telling the child, “I’m sorry, I was running late, I had to go see a friend from work, and I completely forgot to pick you up. It won’t happen again. Don’t tell Mommy about the other times either, ok? I swear this is the last time.” Is that information helpful to Wife’s custody case? Absolutely. Can it be used? No. That recording could possibly be illegal because Wife was not a party to the conversation.
Even if an audio recording is legal, it is not necessarily helpful. In my experience, it is rare to find a recording that is helpful to the party who offers it as evidence. The reason is that judges in family law court know the party who is recording is on his or her best behavior and the other party, who is usually saying or doing something against his or her interest, is unaware the recording is taking place. It is easy to sound calm and composed when you know you are being recorded. I have not seen courts place much faith in audio recordings where one party is trying to “trap” or “document” the other party. There are always exceptions, but this is my general experience. Family law attorneys that send their clients out on a mission to record and manufacture evidence for use in litigation can be setting their client up for lot of trouble in their divorce or custody case.
Further, the biggest mistake people make with audio recordings is documenting conversations with children. Unfortunately, these mistakes can be very costly. It is common for parents to want to document something a child says. The child may come home from a visit with the other parent and say “Mommy hit me too hard” or “Daddy was talking funny and fell asleep on the couch. He was drinking his special drinks that he keeps in the fridge downstairs.” Because statements by a child are inadmissible hearsay in court, the only way for a judge to hear this evidence (with some exceptions) is from the child’s mouth. Unless the child is going to testify in court, which rarely occurs and is highly frowned upon, parents will quickly pull out their cell phones to record a conversation with a child. This is where mistakes are made.
It seems innocent enough at first. The child will make a comment, the parent will quickly realize they need to document that comment and pull out a recording device. The problem that arises is the parent has to get the child to repeat the statement. “What was that you told me that happened at Mommy’s house? How did she hit you? What did you say? Did you cry? Did you tell Mommy not to do that?” The parent begins interrogating the child about the comment, the child shuts down, and the parent appears to be interviewing the child. Instead of placing focus on an allegation of physical abuse or corporal punishment, what the court sees is a parent interrogating a child. This is even worse when the child can see the camera and is aware of the recording. The message is entirely lost and the focus can instead turn to the recording parent. I can say unequivocally I have never found a recording of a child to be helpful for this reason. There are more child-focused and protective ways to document this evidence that we can discuss.
If you are concerned about how to gather evidence via audio recording, or if you have already done so, we are here to discuss how these recordings may be used, whether we believe they are legal, and if no recording has been made, whether it is a good idea to make one. More importantly, if you have questions about how to document comments by a child, this is an essential discussion to have with your lawyer, and we have the skill and expertise to guide you in the right direction.