Tape Recording - Legal Or Illegal?

[LoneStar13]

]What is the name of your state? TEXAS

In Texas is it legal for an undercover agent or a person acting "under the color of the law" to tape record a meeting between an attorney and his clients? Does the person doing the concealed recording of oral communication have to have consent from a magistrate before doing so? Is it correct that the prosecutor has to provide all parties copies of any tape recordings that may be used as evidence at least 10 days before scheduled trial date.?

Thank you for your help. I have read Texas Penal Code 16.02 and Texas Code of Criminal Procedure Article 18 and find this all a bit confusing.

LoneStar13

 

[CavemanLawyer]

All law enforcement needs to record you is your consent, actual or implied. And if they got a warrant than they don't even need that, they just need probable cause. Either way, you aren't entitled to a magistrates warning. Did you give consent in any form? Was there any kind of sign or warning that conversations could be recorded? Where was this meeting? Who all was present? Where was the recording device?

Attorney/client conversations about their case are confidential, so they couldn't use this in court if it qualified for the privilege. You say the attorney was talking to "clients" though. There are more than one of you? Are you both being tried together? If there was anyone else in on the conversation other than the attorney and the defendant(s) than the privilege is waived.

A recording made of the Defendant must be given to defense attorney 20 days prior to trial if the statement was custodial. If its not, which it doesn't seem it was (you weren't being questions by officers) than it must be given with "adequate notice." Usually this does mean 10 days prior to trial since that is the deadline for other types of evidence. But 5 days notice has been held by caselaw to be adequate under certain circumstances.

 

[LoneStar13]

Texas is a 1-party state and No permission was given to record. This is in reference to someone secretly recording a conversation that was held during a meeting that was set up by an established client of an attorney to provide the opportunity for several people who were all ticketed with the same citations in a related incident to retaom amd share representation by the same attorney. With that being the case, would that not be attorney/client privelege as this was basically an initial consultation for all?

Also in such a situation, where the person recording was supposedly acting under the color of the law, isn't an official authorization from a judge for the "interception" required for the evidence to be valiid?

 

[CavemanLawyer]

The attorney client privilege is waived if there is ANY other party to the conversation other than the actual attorney(s) and the actual client(s) on that case. If multiple defendants are all consulting with the same attorney representing them on separate cases, than yes the privilege is waived.

It doesn't matter if it is a private citizen, "operating under the color of law" or someone directly affiliated with the state, either way the only thing that is needed for your statement to be recorded and used against you in an criminal action is if you consent to the recording and the nature of the recording is not otherwise privileged. You absolutely do not have to get authorization from a judge to record somebody. If they consent that is all that matters. For instance, in many counties all calls made from county jail are recorded and screened. This would include private calls between the Defendant and their attorney about their case. These calls are 100% admissible in trial against them because at the start of the call is a message that says, "this call may be monitored." The fact that the person hears this and talks anyway implies consent to the recording and since they know that the call is not confidential, they also waive attorney client privilege in doing so.

Did you or anyone in the room know that the conversation could be recorded? Are there signs in the building saying that recordings are being made? If not than the recording probably cannot be used against you. But you know, even if the state cannot get the recording into evidence, the person who recorded them can still testify to what they heard you say, if they actually heard anything.

 

[Abe Froman]

Discovery?

Caveman Lawyer, are you saying a defendent is entitled to whatever audio or I guess video recording the state plans on using agaisnt them, pre trial, and as part of the discovery process? And at what point would the defendent introduce an expert to testify as to wheterh or not the tape had been chopped up. What I mean by that is, if the state's witness attempted to coerce a defendent into implicating him or herself post arrest, and during that call, the witness admits to things that effectivly indicts him or her of purjury, can that be edited out and just not provided to the DA by the witness of the police, who is usually the ones who own the recorder, and is that considered tampering with evidence, thanks. I hope that's clear enough.

 

[LoneStar13]

The thoght that the tape could be edited by the person recordeing before being returned to the state had crossed my mind as well. In this case, (which by the way was settled today in court,) a copy of the tape was provided to the defense only three days before trial date making it inadmissable. Alot of the tape turned out to be inaudible, verifying what the defense had suspected, that the state had nothing and had only used the tape as a scare tactic. However, the attorney who was taped at this attorney client meeting is highly peeved about the whole situation. No permission was granted for recording. The meeting was held in the privacy of a person's home and the state's witness who did the recording snuck the tape recorder in to the knowledge of no one else present at the meeting. General consensus among defense attorneys involved is the whole situation was highly unethical on the state's part.

 

[CavemanLawyer]

A defendant is only entitled, as a matter of right, to a taped (audio or video) statement if it was made as a product of custodial interrogation. This must be produced to Defendant at least 20 days prior to trial. Other than that, the only material that must be given to Defendant, as a matter of right, is Brady material, which is evidence that tends to show innocence or that is otherwise mitigating. With maybe a few other rare exceptions, all other evidence does not need to be given to the Defendant absent a court order. Different jurisdictions have different policies. Many DA's offices have an open file policy and they just give everything that the State has to Defendant at least 10 days prior to trial. Other offices have a closed file policy and the Defendant's attorney must file a discovery motion, request a hearing, and get the court to order the State to produce specific types of evidence. It will also be ordered when the State must produce this by. It is in the court's discretion what to order produced and the basic rule is whether the evidence is necessary to adequately defend the Defendant.

As for a custodial statement that was tampered with.... the DA's office must of course produce the entire copy of the statement. If the DA's office or the police agency intentionally edited the video to destroy evidence, yes that would be quite a crime. It would be tampering with physical evidence and maybe abuse of office. The safeguards against this are that a recorded custodial statement can only be used against a Defendant if his/her Miranda rights are provided and he/she voluntarily waives those rights either in writing or on the same copy of the audio/video as the statement. As a general practice, any police agency that takes an audio/video statement first reads the warnings and gets a written waiver and all of this is recorded on the audio/video tape. In other words, it might be possible to coerce someone into talking...but I think it would be fairly difficult to coerce someone into going through the entire warning/waiver process without it being noticable on audio/video. However, if the warnings are not substantially compliant with the statutory language or the waiver was not given voluntarily, than the statement cannot be used.

If you are looking for a specific timeline on when the Defense would be entitled to a video statement, it would be 20 days if custodial. If not custodial it would be either when the discovery order specified or at least within 10 days of trial. There are cases that have held that 5 days is adequate notice however if there is no bad faith on the part of the DA's office (ex: newly discovered evidence.)

 

[CavemanLawyer]

Lonestar13: With those facts there is no way that the State could have used that audio unless they had a warrant to do that. I would file a complaint if I were you. That goes beyond questionable ethics, it is probably a crime.

 

[Abe Froman]

Telephone Recording

Ok lawyer de caveman, I don't mean to steel this guys thread, but it does appear his was settled and I hope in his or her favor. For me, probably being a criminal with no experience, I leave out elements or don't think about important details that are critical for thoughtful and meaningful answers. If I was arrested for assault and it is a class C misdemeanor and out on bail, and this is TX, and the claimant, now witness, makes a phone call to me in such a way she is trying to make up with me, and all that that implies, but she really has a recorder hooked up to her cell phone and she is trying to trick me into saying something that implicates me, would any of that be admissible? Now, I will tell you no Miranda rights were discussed on that call, but were at the time of arrest. I will also tell you that the ex girlfriend also admits to things on that call that in effect is perjury. The reason for that is because of things she said later at a hearing in a JP's court. It may be the same everywhere in TX, but in this county, this JP's court is very lax and there wasn't a court reporter to record her statements, but there was the JP, an advocate, my attorney, me, and my parents as a witness to the contradiction. Someone has told me that on those types of recorded calls, she can call me and lead me into whatever and simply give whatever she wants to the police and/or DA as evidence to use against me. I'm not worried because I didn't say anything so it's really more about her removing her statements than the alternative. But I do know the state plans on using some recording from a telephone call, either that one, or maybe a voice mail message, I'm not sure. If it's the one I described, she would edit her admissions from it for sure, and that's why I would want to verify it forensically. And thanks for responding to me, and sorry I'm squatting on another thread!!

 

[CavemanLawyer]

Texas is a one party consent state so that tape can be used against you because she was a party to that conversation and she obviously consented to the recording.

Call me naive but I do not find it likely that any prosecutor would edit the tape without disclosing what and why its being altered, especially on a little class C offense, so I'm going to assume you mean that this woman would edit the tape before turning it over to the State. If that is the case and it is indeed edited you would file a motion requesting a pre-trial hearing on the admissibility of the tape. You can argue that it is unreliable because it has been altered. You would most likely need to testify at this hearing about how you know there are missing parts since you are familiar with the conversation. You don't necessarily need an expert to analyze the recording to get it suppressed.

You'd also want to file a discovery motion seeking the entirety of the tape and request a hearing to compel the State to produce a full copy of the tape. If she has the tape and the State does not, than she'd have to produce it if ordered or she could be held in contempt.

Once you have the whole tape you and/or your attorney can decide whether you want to fight admissibility of the tape or not. If the State doesn't want to admit it you can always do it.

 

[fairisfair]

Ok lawyer de caveman, I don't mean to steel this guys thread, but it does appear his was settled and I hope in his or her favor. For me, probably being a criminal with no experience, I leave out elements or don't think about important details that are critical for thoughtful and meaningful answers. If I was arrested for assault and it is a class C misdemeanor and out on bail, and this is TX, and the claimant, now witness, makes a phone call to me in such a way she is trying to make up with me, and all that that implies, but she really has a recorder hooked up to her cell phone and she is trying to trick me into saying something that implicates me, would any of that be admissible? Now, I will tell you no Miranda rights were discussed on that call, but were at the time of arrest. I will also tell you that the ex girlfriend also admits to things on that call that in effect is perjury. The reason for that is because of things she said later at a hearing in a JP's court. It may be the same everywhere in TX, but in this county, this JP's court is very lax and there wasn't a court reporter to record her statements, but there was the JP, an advocate, my attorney, me, and my parents as a witness to the contradiction. Someone has told me that on those types of recorded calls, she can call me and lead me into whatever and simply give whatever she wants to the police and/or DA as evidence to use against me. I'm not worried because I didn't say anything so it's really more about her removing her statements than the alternative. But I do know the state plans on using some recording from a telephone call, either that one, or maybe a voice mail message, I'm not sure. If it's the one I described, she would edit her admissions from it for sure, and that's why I would want to verify it forensically. And thanks for responding to me, and sorry I'm squatting on another thread!!

If you don't "mean" to hijack then don't. It is considered very rude on the forum. Start your own thread. Caveman was kind to answer you.