My Spouse Recorded Me in Telephone Conversations; Can These Recordings Be Used Against Me in Divorce or Custody Hearings?

Recordings of candid conversation can be damning to the intentions, actions, and reputations of those who are unknowingly recorded. Both federal and state laws govern the recording of conversations and the admissibility of these electronic records in court.

Indiana One Party Consent

IC 35.31.5-2-176 establishes a “one party consent” rule in the State of Indiana. This means that a conversation taking place by electronic means, such as on a telephone, can be recorded legally if consent is given by only one of the parties. The person giving consent can be the sender or receiver of the communication, as well as the person conducting the recording. In other states, such as neighboring Illinois, the standard has long been a two-party consent rule, meaning that if either party is being recorded unwittingly, and therefore without consent, the recording is illegal.

Hearsay

Legality of the act of recording aside, the question of whether the recording can be admitted in court as evidence can involve a complex analysis. Federal rules of evidence define hearsay as any statement made out of the courtroom by some person other than the one testifying to the statement that is offered as evidence to prove the assertions made in the statement. The definition of hearsay can include written documentation, electronic transmissions of voice, and recordings of such transmissions.

Generally, hearsay is inadmissible in court as substantive evidence (i.e. evidence offered to prove claims in a case), but exceptions exist. If the electronic record falls under one of the exceptions, it will be admissible. One common example of an exception to the hearsay rule is an excited utterance, a statement made shortly after a highly dramatic experience, and made while the speaker is under the influence of emotion inspired by the experience.

Credibility of a Witness

Hearsay, if offered to impeach a witness, (i.e. establish a lack of credibility) is always admissible in court, but still cannot be applied to substantive claims.

Get Legal Representation

If you are contesting a case involving the recording of your conversation, do not allow your words to be taken out of context. The admissibility of hearsay circumvents safeguards and measures, such as swearing under oath, set forth to ensure the truthfulness of speakers in courtrooms.

Words spoken out of court by a speaker who is oblivious to the recording can be incriminating. Challenge the admissibility of these records. Having evidence refused in court requires the skills of an experienced attorney. Contact or call the Law Office of Stanley E. Robison Jr. now at (812) 945-3055 for a confidential consultation.

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