Interesting eavesdropped conversation recorded by a minor admissibility question - NY

[billly bill]

Okay – 11 year old minor child lives with his grandmother and father – who are the two parties involved in the legal charges referenced.
In this household, occasionally, there are loud verbal disagreements between the grandmother and father – when these occur, they are often recorded by the 11 year old minor child on his cell phone, as he records most everything on his cell phone, all the time.

One evening the police are called – when they arrive the 11 year old minor child plays for them a small portion of the entire verbal disagreement which led up to the phone call, the portion he happened to have recorded – a portion that involved one of the parties making a verbal threat - so they request a signed statement from the other party, receive it, and make an arrest. The 11 year old minor child email’s the audio to the police.

Now, in my opinion the recording is inherently biased to start with, as it contains only the portion of the disagreement when one of the two parties is making a verbal threat, as both will routinely threaten each other, when these unfortunate disagreements occur. However, my question is about the legality of that recording as far as its admissibility in court.

So the charges are as follows:
Menacing (making a loud verbal threat to someone else)
Endangering the welfare of a child (making a loud verbal threat to someone else in the presence of a minor child)

So about that audio – it’s my understanding New York State is a one party state, so for an eavesdropped conversation to be admissible, one party must consent to the recording – the father did not consent, the grandmother did not consent.

Can an 11 year old minor child legally consent to recording an eavesdropped conversation?

Also - is this even a question that needs to be asked, since he is a third party to the dispute?

Is that audio tape inadmissible because he is a third party to the dispute, or is he also a legally relevant party somehow because of the endangering the welfare of a child charge – even though he was not part of the argument? If he is a party, since he is a minor, can he legally consent to his own recording of the eavesdropped conversation?

 

[FlyingRon]

Since the person making the recording was NOT a party to the conversation, it's illegal. NY requires at least one of the parties to consent to the recording.

 

[Silverplum]

It would be super if the kid uttered one word or more directly to one or both of the asses. Or perhaps the fact that they involved him in an abusive situation might sway a decision?

 

[LdiJ]

It would be super if the kid uttered one word or more directly to one or both of the asses. Or perhaps the fact that they involved him in an abusive situation might sway a decision?

I was thinking the same thing. If the argument can be made that the child was involved at all in the situation, then the argument could be made that the child was part of the conversation.

 

[FlyingRon]

I was thinking the same thing. If the argument can be made that the child was involved at all in the situation, then the argument could be made that the child was part of the conversation.

The mere fact that he was mentioned is IRRELEVANT. He is not a party to the CONVERSATION. Now if the child had actually been present in the room, one might argue that he was a party to a conversation not intentionally made so he wouldn't be able to hear it. However, if he recorded it from another room or he placed his recording device and left, then it certainly would be an illegal recording.

 

[Zigner]

The whole (theoretical) question is moot. The arrest was not made on the basis of the recording. The arrest was made on the basis of the victim's statement.

 

[HighwayMan]

The arrest was made on the basis of the victim's statement.

Well, who knows who the "other party" was - could be the victim or the perpetrator (i.e. a written confession - perhaps even an inadvertent one).

If there are any questions about the legality of any part of this situation, the defendant's attorney should be dealing with this.

I'm sure there are issues here which the OP may be unaware of here. The defendant's attorney is the best person to be dealing with any evidence issues.