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David Jungerman took an audio recorder to his court hearing and pressed “on.” Unfortunately for Mr. Jungerman, he forgot to press “off.” After leaving court, he admitted to murdering a Kansas City attorney who had obtained a judgment against him – all while the recorder was still on. Investigators later recovered it during a search, and Mr. Jungerman has been charged with murder.
While this may well be the only time someone has accidentally recorded his own murder confession, there are other legal pitfalls for persons who secretly record conversations. Both federal and state laws apply to the use of recording equipment; breaking those laws can lead to criminal prosecution as well as civil liability (to the person who was improperly recorded).
Whistleblower law firms evaluating whether to take on a case will look carefully at the strength of evidence; so too, will government attorneys in deciding whether to intervene. Of course, the more evidence a whistleblower can provide about wrongdoing, the better. Making recordings, however, should not be done without first consulting an attorney. We find that, when it comes to electronic eavesdropping, it is often better to wait until government investigators have gotten involved in a case. At that stage, we can work collaboratively with prosecutors and investigators to use this important tool while limiting any potential liability to our clients.
Under the federal eavesdropping statute, it generally is a crime to record conversations unless one of two exceptions applies:
(1) the interception is done with prior court approval, or
(2) one of the parties to the conversation consents to the recording in advance.
18 U.S.C. § 2511. If the recording was improperly obtained, it is a separate crime to use or disclose that information. Violations of the law are punishable by up to five years in prison and a $250,000 fine.
Secretly recording the conversations of others – when you are not part of the conversation – is a crime under federal law and the laws of nearly every state. For example, an employee could go to jail for leaving a recording device in a conference room to record the conversations of her co-workers when she wasn’t present at the meeting.
Under federal law and the laws of most states, recording a conversation in which you are personally participating would not violate eavesdropping laws. These are what are known as “one-party consent” jurisdictions. In eleven states, however, the consent of all parties is required, and recording a conversation without the other participants’ consent is a crime. These are known as “two-party consent” jurisdictions (more accurately described as “all-party consent” states, since more than two persons can be involved in a conversation). At last count, these states are: California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. These are only general rules, however. States often have more than one law and technical wrinkles in how they handle electronic eavesdropping. In Connecticut, for example, in-person conversations require only one party’s consent, but telephone conversations require the consent of all participants. In short, electronic eavesdropping is a very tricky business in which it’s essential to know and follow the rules.
Consulting with an attorney may not have saved Mr. Jungerman from his colossal mistake (Missouri is a one-party consent state), but he undoubtedly wishes that he had left his recorder home that day. That typically would be our advice. Electronic eavesdropping can lead to major problems for whistleblowers who decide on their own to record conversations.