- January 9, 2018
- Posted by: Lee A. Schwartz, Esquire
- Category: Monthly Newsletters
I have written previously about parties secretly recording conversations with third parties, with the mistaken belief these recordings may be used in Court in child custody or other legal proceeding. I have strongly urged you not to do so, as such recordings most likely will be in violation of Wiretap laws.
With the advent of the cell phone, and the ease of recording conversations, it is not uncommon for client’s to proudly tell me that they are recorded their spouse, lover, child’s school teacher, child’s therapist, their child, etc., without the other party’s knowledge, and the client now wishes to share with me the fruits of their recording. I again wish to urge you not to do so. It can’t be used in Court and is illegal, period. It doesn’t matter how salacious, probative or damning the recording is. Not only will the Judge not hear it, they would have the opportunity to report you to the authorities.
In a recently reported Pennsylvania legal opinion, in the case Commonwealth v. Cline, a man was criminally charged for recording a Custody Hearing and thereafter posting the recording on Facebook. For his trouble, the man was sentenced to 11 ½ to 23 months in prison. The gentleman appealed to the Superior Court.
The three-Judge panel of the Superior Court upheld the sentence. Mr. Cline had been convicted of violating the State Wiretapping and Electronic Surveillance Control Act.
Mr. Cline challenged the sufficiency of the evidence, stating that he did not know that recording and posting the video online was illegal, citing his testimony that he didn’t know he was not allowed to record the hearing.
As many of us know the tried and true axiom: “Ignorance of the law is no excuse”, the same was applied here. All that needed to be proved was that Mr. Cline knowingly or intentionally recorded and then disclosed those discussion. Whether Mr. Cline knew his actions were a crime was irrelevant, saying Mr. Cline’s “…knowledge of the law is not [relevant]”.
Mr. Cline also contented that the prosecution violated his due process rights. However, Mr. Cline failed to raise the issue at the trial court level and therefore could not raise it on appeal.
This case underscores that you are violating the law if you secretly record conversations. Certainly, if a person leaves a message on your phone, that is not a secret recording. The person leaving the message knows they are leaving it.
Let us know if we can help.