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In Virginia, May I Secretly Record a Conversation and is the Recorded Conversation Admissible as Evidence in Court?

5/1/2015

57 Comments

 
By Assya Thode

Whether a recorded conversation may be introduced as evidence in court has become a frequent question because everyone has access to recording devices on smart phones. Recorded conversation are governed by federal and state laws, so before recording a telephone call or an in-person conversation, you must consider the applicable laws to ensure that your recording is admissible.

Assuming the recording is for a permissible purpose,* the primary consideration is knowing whether your state or jurisdiction requires one party consent or two party consent.  As the name suggests, one party consent only requires permission to record the conversation from one of the parties participating in the conversation.  Therefore, if you are a party to the conversation, you may record it without obtaining permission from the other party or parties.  A two party consent rules requires consent by two or all parties in the conversation.  In other words, if you are part of the conversation, you must also get permission to record from the other party or parties.

Virginia is a one party consent jurisdiction and Virginia Code § 19.2-62 makes it a crime to intercept wire, electronic or oral communications, except if one party of the conversation consents to it. Again, this means that if you are participating in the conversation then you may record the conversation without the consent of the other parties, but if you are not participating in the conversation (the other parties do not know you are listening), then you need at least one party to the conservation to consent to the recording. 

However, Virginia distinguishes between in-person conversations and telephone conversations. Virginia Code § 19.2-61 defines “oral communications” to mean “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations but does not include any electronic communication.”  Therefore, you may record in-person conversations in a setting where the speaker does not have a reasonable expectation of privacy and where one party consents to the recording. 

If the person has a reasonable expectation of privacy, like if you are trying to record a conversation inside the speaker’s home, following the stricter guidelines that apply to telephone conversations would be prudent.

Telephone conversations shall be admitted in a civil trial if (1) all parties were aware that the conversation was being recording because such notice was given at the beginning of the conversation to be admitted; or (2) the admissions, if true, are criminal conduct, and the basis of the civil action, then only one party consent is required, but this does not apply to proceedings in divorce, separate maintenance, or annulments. Virginia Code § 8.01-420.2.

You may be able to avoid some of the pitfalls involved with recording conversations if you video record a conversation where the camera is in plain view because consent may be presumed by the participants (if they did not consent they would not continue to speak while being video recorded).

If you are recording a conversation between parties in different states or jurisdictions, it is best to adhere to the strictest statute because although you may only need one party consent in your state, you may be committing a crime if the other state requires two party consent. For a list of consent requirements by state click here.

It is always illegal to record a conversation to which you are not a party and for which you do not have the consent of any party involved.

*Federal law 18 U.S.C. §2511(d) prohibits secretly recording a conversation if the recording is to be used for a criminal prosecution unless one of the parties consents.

This blog post provides general information only and is not intended to provide the reader with legal advice. Laws often change before websites can be updated, so please contact Steven Krieger Law for a consultation to evaluate your specific case.
57 Comments
Richard Jablonski
3/9/2016 10:30:44 am

can I record Audio and Video with security camaras in plain sight and a posted notice that Audio and Video may be recorded for security reasons in Virginia??

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Lonnie Moore Jr. (Surf)
6/27/2016 10:11:17 pm

I need to talk to you Steven about rule 8 for relief short and plain for jurisdiction, what type of relief, and damages my case is dismiss on that basis along with a hearing.

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Mike
9/19/2016 07:52:06 am

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Dave Briggman
4/30/2017 06:12:42 pm

How would you be able to prove the people could read the sign? No, is the simple answer.

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Ben carter
5/13/2017 12:08:53 pm

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Dan Hubbard link
4/16/2016 10:32:23 am

So, if an employee uses a cell phone provided to them by their employer, and that cell phone is the primary number used for interstate ad foreign commerce of the employer's business, and the employee calls someone for personal reasons and records the call, is the person called by the employee to be notified that the call may be recorded?

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Jen Blugerman
7/15/2016 10:17:14 am

My divorce decree included language about how communications between us needs to be civil and respectful. If my ex in continually harassing me with disrespectful, vulgar and slanderous texts and calls, can I secretly record our phone calls and use them in court if I need to use them as evidence of his behavior for violating our divorce order, any child custody changes, or if he crosses the line and physically threatens me?

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Gamal Williams
8/30/2016 03:56:31 am

I would like to know the answer to this myself. My ex is purposely keeping my daughter from me and I need proof what she is saying and doing.

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Alex
9/27/2016 08:01:08 pm

Yes you may as you consent and as it is (I presume) going to be for evidence against the defendant.

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Jim D.
12/13/2016 05:28:10 pm

That is not completely correct. She may legally be able to "record" the conversations, however, they will not be admissible in court if she seeks to modify the court order regarding the divorce proceeding. They may be admissible if the insults rise to the level of a crime -- however, I have no idea if verbal harassment and or threats of physical violence are a crime in Virginia.

In addition, given that there are probably lots of unresolved feelings on both sides, rather than waste your money on lawyers, you should try to get into some sort of therapy (preferably both individual and together) in order to calm the waters and help your children. The only ones really hurt by bad behavior in divorce settings are the kids. Kids need BOTH parents -- and its imperative on BOTH of you to GROW UP and get along. He's obviously still hurting -- and you need to look at your behavior as well, and acknowledge your part in the dispute -- in order for everyone to feel heard, get along and provide the best circumstance possible for your kids.

Tracy Scott
9/8/2016 11:24:53 am

My husband and I are legally separated but living in the same house. He has been verbally and physically abusive throughout the marriage. He is verbally attacking me daily now, and threatening to make up info to take my children away(who do NOT want to live with him).
Can I record his rants against me during arguments?

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Steven
9/8/2016 07:54:06 pm

@Tracy -- Yes. But, please be careful not to record your children.

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Tracy Scott
9/8/2016 08:28:36 pm

Thank you! Most of the time he verbally attacks me in front of them, but I will go outside or in another room so they don't hear it, and he follows me. That's when he gets really bad and when I would like to record.

Sam
2/11/2018 01:20:31 am

He's not abusing if he is pointing out something awful you're doing or if he is replying to your verbal abuse. Verbal abuse means it is uncalled for and downright mean. One could argue you are abusive to him....

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Son of Sam
2/16/2018 10:55:36 pm

Sam - Seems like you’re taking out your own personal issues in this poor woman. Nowhere did she say anything about what “she was doing” in the situation. She stated her husband had previously been physically abusive, and was now being verbally abusive both in front of the kids, and behind closed doors.

How in God’s name do you get off telling her he’s just “pointing out something awful she’s doing” or that she is actually the one being absusive? Nowhere does she provide any evidence of that.

Seems like you’re jumping to conclusions and turinging the victim into the enemy here (without any evidence to support that claim). Maybe something really crummy happened to you, but don’t take out your baggage on other people...ya douche.

Dave
9/18/2016 11:01:35 pm

If I record my ex girlfriend that lives in Vermont and she threatened my life can I charge her with making threat on my life?

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Alex
9/27/2016 08:02:38 pm

Yes as it will be considered as evidence against the defendant.

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Christin
9/28/2016 07:52:24 am

What if a parent records the kids (ages 7&9) answering a bunch of questions? (in the state of VA) As in, one parent interrogated the kids about the other parent and recorded it? I would think it would not be admissible, but then again, to me it seems like it would be evidence AGAINST the parent who did the recording as most courts prohibit that type of behavior.....

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Stephanie
10/17/2016 09:07:32 am

I work with a student who has a habit of accusing teachers of behaviors and perpetuating rumors. There are times where I have to work one on one with her and wanted to record the convos so that I have proof.

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James Cooke
12/3/2016 10:11:32 pm

Can a spouse use a recording that was setup in his house to record his wife's phone calls when he is not home? He used a small hidden recorder and let it run nonstop while he was gone and is now telling her he will use it to divorce her and take the kids if she doesn't stop try talking to a friend.

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Steven
12/18/2016 08:37:52 am

@James -- Probably not. To record a conversation, you generally need to be a part of the conversation, so recording a conversation between wife and others when the spouse is not home would not be permissible and could violate federal laws.

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James
12/18/2016 09:38:59 am

I called the sheriffs office and they said that it is legal to record in your own home regardless if your there. Being that its his residents then it can be added into evidence. Now if he was to move out then it would be illegal for him to record inside the house.

Johnny
1/19/2017 12:35:41 pm

my fellow employs and I are getting threaten us. I was wondering if I could tape this and get him in trouble

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Kim Jones
2/2/2017 08:05:36 pm

I am a property manager one of my residents came in my office and spoke to my regional operation manager and told her that she had a recording conversation of her and I my regional operation manager went into the back office listen to the recording of the conversation her account does that have the right to record my conversation then share it with my operation manager please let me know what I can do about that or do I have legal right to sue my resident trying to jeopardize my job

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Kelly
4/6/2017 09:10:57 pm

I left my phone in my shared office with my boss and 2 co-workers (same level of management as myself). I did not know it was illegal to do that. I had a gut instinct that when I left the room, they talked about me behind my back. I listened after I left work for the day and was horrified by what the said about me. I was shocked to hear our boss talk with the other two managers about my 60 day review and what I brought up as concerns from my review. I feel so uncomfortable and now want to resign. I don't necessarily want anyone to be fired or get in trouble but I really want them to know that I know what they said behind my back. It is hurtful and shameful what they did. What are my options without getting in legal trouble?

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Steven
4/7/2017 07:07:43 am

@Kelly -- While the recording may not have been permissible b/c you weren't a party to the conversation, you could still confront your colleagues and explain that their behavior was inappropriate and then figure out how you want to proceed regarding staying or leaving in your position.

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Kelly
9/21/2017 12:43:29 pm

Steven, I continue to be spoken about poorly by my boss to other co-workers. I went to upper management and they basically demanded to know how I knew this information. I shared with them it was from a recording. Can I be fired for what I did? Can my boss try to press charges against me if she finds out that I recorded her conversation when I stepped away from my desk?

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John Marshall
4/22/2017 08:41:52 am

A sibling recorded me and videotaped me in a heated argument with them with a third person in this argument being our father. They shared this recoding with the police. Is this illegal?
Thanks,
John

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Beth
5/3/2017 03:01:51 pm

False accusations have been made against me, and I've requested a meeting with the person making them. We'll meet in the small social hall of a church in Virginia, another person will be in the building, and several more have keys to the building. Could I legally record this conversation without informing my accuser? This wouldn't be for use in court, but would it be legal to do?

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Beth
5/4/2017 04:07:02 am

I know that in VA, one participating party may record, but I'm not clear whether expectation of privacy plays any role?

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Patsy M Ferguson link
7/26/2018 04:50:29 pm

Can Hud housing audio record you in the state of Virginia?

Ben carter
5/13/2017 12:15:33 pm

Can a security agency place a video camera in plain view and video and audio the work personnel, is it kegal

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David
6/6/2017 03:58:40 pm

My wife's boss installed a audio video camera (without acknowledging it to the staff) and recorded a conversation between two employee's and fired one of them (not my wife, who instigated the conversation). But then showed the audio and video to several other employee's who are non management. My wife felt intimidate and terminated her employment. My question is, would they have a case against the establishment and if so, who should we call?

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David
6/7/2017 07:45:45 pm

Looks like this "question answer" blog page died at the beginning of 2017, as there have been no answered questions since.

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Annie
6/14/2017 04:08:18 pm

I'm a public school teacher in Virginia. I have a student who has bragged to me about how many teachers he and his mother have secretly recorded and then used the digital recording to complain to administration or bully the teacher until they're fired or finally quit. He's successfully done this to 2-4 teachers in 6th grade, 7th grade, and now in 8th grade. He recently began emailing me at my work email "i heard ur getting fired". He's perpetuating this nasty rumor to students and his mother admitted to doing the same when speaking to other parents. Are such recordings legal? Would the email and spreading rumors fall into the category of defamation?

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Steven
6/22/2017 07:41:03 pm

@Annie -- it really depends on what specifically is said in the email, but it's certainly possible. Feel free to call my office.

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Bailey
6/28/2017 07:45:45 pm

If I'm in a hallway or other open office space in a federally contracted building with my cellphone microphone on and I'm waiting to speak to my boss who is in an office with the door closed, can any of the communications picked up on the mic because of thin walls be used in court or only the conversation that occurred in the hallway between my boss and I after my boss exited the office? Does the expectation of no privacy and monitoring also exist between employee and employer?

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Michele
7/11/2017 07:34:17 am

Are text messages allowed in court to prove a case. My mother in law is trying to take furniture from me that my husband brought. We are separated but no legally and we are trying to work it out. She is lying taking me to court to get items. She has hired a lawyer to support her lies. I have the text messages from my husband when he says he didn't want me to have the furniture. Now he says it's not him it's his mother and he nothing to do with it.

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Jennifer Cook
8/2/2017 09:06:58 am

I have had a issue with my job about coupons and my boss lets coupons be stacked which is against policy, however I had my district manager call me to tell me the policy. I knew he was doing wrong and he argued with me about my the coupons that we except any and all. So I recorded our conversation on how I was to do coupons and she told me what the policy was and which he has been doing them wrong all along. I was correct about the policy. So was it ok that I recorded our conversation. So I had proof for me of what I can and can't do.

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Heather Ryan
8/18/2017 01:51:31 pm

Can I record a phone conversation with only one party consent in Virginia and use it in Juvenile and Domestic court?

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Steven
8/19/2017 07:16:00 pm

@Heather -- if you're a party to the in person conversation in Virginia then yes.

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DW
8/28/2017 10:17:05 am

I have a crazy neighbor (Fairfax County) who I had a parking dispute with who now keeps coming out of her house and videotaping me with her cell phone whenever I am outside. She does this if I'm getting out of my car, getting in my car, bringing in groceries, outside with my grandchildren, etc. I told her is was harassment and that if she doesn't stop I will call the police. Is her constant filming me without my consent illegal and can I sue her for harassment, invasion of privacy, loss of enjoyment of my own home?

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Edy
10/23/2017 12:24:08 pm

I have a question my daughter is getting bully in school mostly on the bus it’s been going on for 3 years now I spoke to School talk to principal try to talk to other kids parent call cop nothing is being done Can I put a spy cam on my child to have proof of her vein bully

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Michael Mize
11/30/2017 12:39:13 pm

What crime do you charge someone with when they record you without permission?

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Name (required)
12/12/2017 08:43:05 am

Can a retail establishment have cameras recording audio & video, if the business is open to the public, and has a note by the door that audio / video recording is done on the premises? I can only presume that the context of the space, plus the note on the door, plus 9 cameras attached to the ceiling would mean one would have no expectation of privacy inside that space.

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Steven
12/13/2017 07:56:54 am

I don't think there is an expectation of privacy when you're in a public retail setting.

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Joi
1/22/2018 09:47:06 am

I am a qualified person with a disability. My Office procured a SmartPen for use as a reasonable Accommodation in 2015. My supervisor is aware of the SmartPen yet, has berated me during meetings and trainings in regards to my disability beginning in 2015. He now realizes that he has been recorded by the agency provided assistive device and is now demanding consent before I use the Reasonable accommodation granted and is not requesting his consent be asked for specifically in one to one meetings between us. I live in Virginia which is a one party consent state. Your thoughts?

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Mother of Sexually abused children
1/28/2018 03:39:50 am

My children told me of they're drunk and high father with his five friends having orgies together and involving my children with two other children. I asked CPS to help. They did not so my children and I went to the court and had protective orders granted. When time came for my children to speak to the judge for a long-term protective order plan, they could not speak. I was told they could speak to the judge without their father and the abusers. That was not the case sadly. They had to speak in front of their abusers and froze. Since then CPS placed my children with their dad and the abusers. They switched a counselor who refuses to talk about the abuse. I recorded a session where my daughter says are we here to talk about the bad things my dad does to me? As always this counselor rerouted the conversation. On my 4 hours a week visit my children demonstrate signs of sexual abuse still. They also mention things very alarming like I don't want Daddy to touch me anymore. And by court order because my children couldn't talk for themselves I have to send them back. Can I use the counseling recordings with the therapist in denial and In Cahoots with CPS in the court hearing coming up?

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AB
2/18/2018 05:06:55 pm

Hi, I'm wondering if it is legal to record my abusive father? I'm a teen still living with my parents and I am desperate to do something about it. He yells a lot and is verbally abusive to my mother as well as absuive to my sister and overall emotionally manipulative and abusive. I'm wondering if it's legal to record him verbally abusing (yelling, cussing, silencing, threats, name calling, etc) my mother and sister even if I am not involved in the "conversation". Normally I stay in my room upstairs so he doesn't usually yell at me (although he certainly has before) and I can't record him in plain sight because I know he will not consent to it.

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SAM
4/23/2018 03:43:14 pm

If I have a feeling that my wife was cheating on me can I put a recorder in my home or in her car to know if she talking to somebody is that legal or not

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Susan Johnson
8/4/2018 12:26:35 pm

I have an ex friend in VA who i loaned money to. She is trying to finagle her way out of paying interest and is wanting me to verbally say I’m willing to settle. I plan to do that but I have numerous loopholes I plan to pursue legally after I tell her yes. I know she is going to record me. Is that binding? I won’t give her permission to record me but I know she will. What is the course of action I should take......

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Steven
8/19/2018 07:33:34 pm

@Susan -- This is a bit too complicate for me to respond to via the comments section and I'm not sure you want to be disclosing all this info on the internet. Feel free to give my office a call.

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Susan Johnson
8/19/2018 07:45:09 pm

Number please.....

JCB
11/26/2018 10:08:08 am

What about a conversation between a patient and a doctor in the doctor's office but in the room that the patient meets with the doctor and his assistant. Would it be okay the patient to record that conversation?

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MS
1/2/2019 02:29:19 pm

I am from Virginia and was stationed in California for 3.5 years when I was active duty military. My sister was pulled over for speeding and used my name probably because her license was suspended. So I currently have a misdemeanor for driving without a license. I just found out about it, confronted her as she is my only female sibling and she admitted to it. I asked her to come to court with me to fix it and initially she said she would but after talking to her lawyer is saying she should not. Now Virginia is a one party state and I plan on the recording being at our family home so would it be admissible in court due to the condition of “reasonable expectation of privacy?” I have a court date on Jan 15 hopefully a key piece of evidence is mailed prior to this date or I will have to try and record a conversation.

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Sarah
2/10/2020 08:14:34 am

Did you ever receive an answer?

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Patricia link
1/10/2019 02:59:20 pm

Can I tape a conversation in a 2nd step grievance meeting in Virginia legally?

Reply



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