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.