I'm told I can't use a recorded conversation as evidence in court. Why?

The federal courts and every state have rules of evidence regarding what types of evidence are admissible and the authentication required for admitting that evidence. The requirements for a recorded conversation are no different. As a general rule, evidence obtained illegally cannot be used in court, and surreptitious tape recordings by telephone are illegal in most states under their respective penal (or criminal) codes. You must have permission from the party being recorded or, at the very least, give the other person notice that the call is being recorded.

The twelve states listed below require, under most circumstances, the consent of all parties to the conversation before taping is allowed. If the court determines that the statement was obtained in violation of state law, it will not qualify as generally admissible evidence.

California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. 

Establishing a Foundation for the Recorded Conversation

Federal law and several states require only that one party to the conversation consent to the recording. If you are a party to the conversation that you are recording, then your consent is sufficient. New York, Louisiana, and Texas adhere to this requirement.

However, even if the recording is the type of evidence that is admissible, you still may not be able to introduce the tape in court due to a lack of predicate. Predicate refers to the foundation that you must establish to ensure the evidence is reliable. For example, until you establish that the voice on the tape is actually belongs to the person you are claiming it does, the recorded conversation is hearsay and will not be admitted.

Predicate rules are usually set out in a state's rules of evidence and will vary, but generally you must be able to:

  1. Demonstrate that the voice on the tape actually belongs to the person you are claiming, not someone impersonating them;
  2. Show that the recording device you used was capable of making an accurate recording;
  3. Prove that the recording is a true and accurate representation of the conversation. This is usually an issue when the recording cuts in and out because of, for example, wind blowing through the microphone, which could cause the conversation to lose much of its context; and
  4. Verify that the recording has not been tampered or altered in any way.

Even if the evidence would otherwise be admissible, if you cannot satisfy your state's procedural predicate rules, the recording cannot be used in court.

Because the recording and predicate rules vary so much by state, you should consult with an attorney in your state before you begin making recordings. They can advise you of the proper consent requirements and recording techniques to insure that your evidence can be used. Most importantly, they can help you avoid being charged with a crime yourself.