Are cell phone convo's admissible in court

[TriplEEE]

What is the name of your state? Colorado

Can unauthorized taped conversations from a cell phone be admissible in CIVIL court? I thought it was universally inadmissible to use taped conversations of any sort without your knowledge that you were being tape-recorded.

 

[BelizeBreeze]

What is the name of your state? Colorado

Can unauthorized taped conversations from a cell phone be admissible in CIVIL court? I thought it was universally inadmissible to use taped conversations of any sort without your knowledge that you were being tape-recorded.

Yes. and you thought wrong.

 

[TriplEEE]

How unfortunate. Does it differ with land lines? Have I been watching too much TV or has this always been admissible? Is it specific to Colorado law?

 

[BelizeBreeze]

How unfortunate. Does it differ with land lines? Have I been watching too much TV or has this always been admissible? Is it specific to Colorado law?

Cell phones fall under the FCC regulations as radio transmissions.

Colo. Rev. Stat. § 18-9-303: Recording or overhearing a telephone conversation, or any electronic communication, without the consent of a party to the conversation is a felony punishable by a fine of between $1,000 and $100,000 and one year to 18 months in jail. Recording of a communication from a cordless telephone, however, is a misdemeanor. Colo. Rev. Stat. § 18-1.3-401.

Using or disclosing information obtained through illegal wiretapping is prohibited if there is reason to know the information was obtained illegally. Anyone who is not "visibly present" during a conversation who overhears or records the conversation without the consent of at least one of the parties commits a felony carrying the same punishment as a telephone interception, as does anyone who discloses the contents of such a conversation. Colo. Rev. Stat § 18-9-304.

Whether or not such a recording is admissible is a question of fact for the court to decide.

HOWEVER, if the other party to the conversation (or parties) are in another state when the recording takes place, then it falls under both state laws and the courts have held in the majority that the more stringent of the choice of law will prevail.

In other words, don't record. Purchase an answering machine and let anything you want to save go to the machine. Then you have 'implied' consent.

 

[EvilWizard]

Belize I thought the ECPA made the act of recording cellular phone conversations illegal without consent of both parties (electronic eavesdropping)... even though it is an RF transmission. There is no jailtime for interception and recording of the radio portion of a cell phone call but there can be fines ranging from $500 to $250k.

 

[BelizeBreeze]

Belize I thought the ECPA made the act of recording cellular phone conversations illegal without consent of both parties (electronic eavesdropping)... even though it is an RF transmission. There is no jailtime for interception and recording of the radio portion of a cell phone call but there can be fines ranging from $500 to $250k.

Actually, under the facts of this case, the colorado statutes will prevail unless the call being recorded includes an interstate claim.

 

[TriplEEE]

Thank you very much, Belize, for referring to specific stautes! So would Colo.Rev.Stat. s18.9.303 and s18.9.304 apply to the following scenario?

2 people are talking on a cell phone (regardless of who initiated the call) and person A presses record on their cell phone and begins to capture the conversation while never letting person B know they were being recorded. Now "A" wants to play this recording for the jury to hear in a child custody trial (the recorded convo was a heated argument). In your interpretation, would the above referenced statutes apply?

 

[BelizeBreeze]

Thank you very much, Belize, for referring to specific stautes! So would Colo.Rev.Stat. s18.9.303 and s18.9.304 apply to the following scenario?

2 people are talking on a cell phone (regardless of who initiated the call) and person A presses record on their cell phone and begins to capture the conversation while never letting person B know they were being recorded. Now "A" wants to play this recording for the jury to hear in a child custody trial (the recorded convo was a heated argument). In your interpretation, would the above referenced statutes apply?

I am not a judge and I do not pretend to be able to ascertain all relevent issues.

Were both parties in the state of colorado?

Were both parties using land lines or one party a land line and the other a cellular phone?

Was the call recorded for tortious intent?

Is the 'evidence' inflamitory and prejudicial or does it stand on it's own?

Get the point? There is no way to answer such a question without a full review of the case and all attendant issues.

 

[TriplEEE]

Thank you Again! I do get the point... every situation requires evaluation and interpretation based on the most subtle and not so of nuances. To address your specific questions:

Yes, both parties were within the state of CO
No land lines were involved, both parties were on cell phones
Yes, call was recorded for tortious intent as it was intended to be used as evidence aginst my client
Yes, the evidence would be considered inflamitory and prejudicial to a jury

I have a general understanding of how this might apply. Moving forward, I see, the residing judge will need to evaluate the evidence's admissiveness. I am grateful to be able to provide a statute for consideration, in case the use of that 'evidence' at trial would fail to be addressed otherwise.