• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Tape Recording someone

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

WilliamReuben

Junior Member
What is the name of your state (only U.S. law)? TX

We have a music studio that was burglarized. We've found out who did it, and think we could get him to confess on the phone. Can we record him and legally use that tape recording to help get him arrested/convicted?
 


Ohiogal

Queen Bee
What is the name of your state (only U.S. law)? TX

We have a music studio that was burglarized. We've found out who did it, and think we could get him to confess on the phone. Can we record him and legally use that tape recording to help get him arrested/convicted?
Nope. Even if Texas is a one party state tape recordings can NOT be used for law enforcement purposes. Report this to police as to who did it. Let them investigate.
 

WilliamReuben

Junior Member
We have reported it to the police. Unfortunately, because the burglary was so long ago, the detective said he can't get a search warrant for the guy's house. The informant has been unwilling to talk to the detective, so without some information from the burglar himself, we're kind of at a dead end. The burglar called us - we didn't answer - but there's no other reason for him to contact us aside from something about the burglary. We spoke with the detective about him calling us, and we suggested to the detective tape recording the conversation. The detective seemed on board with it, and didn't say it would be illegal. So I'm confused ....
 

swalsh411

Senior Member
In a one-party state it's not illegal to tape record phone conversations just don't expect it to hold up in court as evidence. But of course if they guy confesses..... (he may not know it wouldn't hold up in court).
 

CavemanLawyer

Senior Member
Where in the world are you two getting your information from?

Texas is a one party consent state and audio recordings taken by lay persons absolutely can be used as evidence in court. The person that engaged in the conversation can authenticate the recording as accurate and can identify the voice on the other end of the line...if that Defendant doesn't identify him or herself on the recording. As long as the person is not in custody there is no formality whatsoever required to record someone in a consenting conversation. Voluntary, non-custodial, statements of the Defendant can be offered in trial against him/her. It can be in the form of testimony (he told me), writing (here's his letter) or recording (that's him talking to me on the phone.)

There is nothing unlawful about it and not only do these types of calls hold up in court, they make great evidence.
 
Last edited:

justalayman

Senior Member
and while not disagreeing with caveman lawyer, even if the recording was not admissible in court as evidence, it surely would be allowable as support to initiate an investigation and depending on what was said, possibly even provide enough support for a search warrant.
 

BOR

Senior Member
Where in the world are you two getting your information from?

Texas is a one party consent state and audio recordings taken by lay persons absolutely can be used as evidence in court. The person that engaged in the conversation can authenticate the recording as accurate and can identify the voice on the other end of the line...if that Defendant doesn't identify him or herself on the recording. As long as the person is not in custody there is no formality whatsoever required to record someone in a consenting conversation. Voluntary, non-custodial, statements of the Defendant can be offered in trial against him/her. It can be in the form of testimony (he told me), writing (here's his letter) or recording (that's him talking to me on the phone.)

There is nothing unlawful about it and not only do these types of calls hold up in court, they make great evidence.
I have this case in my notes, and if I read it right, a subpeona to give a voice exemplar can not be quashed unless that state constitution can do it?


http://supreme.justia.com/us/410/1/case.html
 

Ohiogal

Queen Bee
So long as a wire, oral, or electronic communication—including the radio portion of any cordless telephone call—is not recorded for a criminal or tortious purpose, anyone who is a party to the communication, or who has the consent of a party, can lawfully record the communication and disclose its contents. Texas Penal Code § 16.02.
Also see:
Crane v. State, 786 S.W.2d 338, 354 (Tex. Crim. App. 1990) holding that even if a tape recording itself is admissible under a hearsay exception, any statements made in that recording are subject to the hearsay rule
 

CavemanLawyer

Senior Member
I'm not sure what you are getting at Ohiogal. PC 16.02 is the wiretap statute. No one is talking about intercepting conversations we are talking about recording one's OWN conversation. 16.02 (c)(4)(A) specifically makes an exception for the type of call/recording that WilliamRuben wants to make.

I took that language you quoted and ran it through Westlaw. It does not appear in any case Texas, Federal, or otherwise. That language certainly is not contained in 16.02. A quick google search shows that it is a common "internet answer" used on forums and appears to originate from a press cite. It is a catch all summary of much more than just 16.02. In any case the language specifically says the opposite of what you are arguing. If the conversation is obtained from the person in a consensual conversation and the recording was not made for a criminal purpose then it can be disclosed. When it says criminal purpose it means that the recording constituted a crime (ex: unlawful wiretap) not that the recording be made for prosecution purposes. If you go to the actual statute of 16.02 this is clear, as it uses the language, "intercepted for the purpose of committing an unlawful act." Futhermore, this section only applies when the person doing the recording is not a party to the conversation, but just has consent of one of the parties. ( its section (c)(4). ) This section does not apply when the recorder is an actual party to the conversation as is the case with WilliamRuben's scenario.

Yes of course the hearsay rule applies equally to recordings as to anything else but we are talking about recording the statements of someone who ultimately would be charged with the crime and those are not subject to the hearsay rule. I don't even mean they are exceptions to the hearsay rule, they literally are considered NOT to be hearsay at all. See TRE 801(e)(2.) Crane is a bizarre case to cite because in that case it was the Defendant trying to admit his own recorded statement, which IS hearsay. If that same recording had been offered by the State it would have been admissible.

It would be ridiculous for the victim in a criminal case to get on the stand and testify that, "The Defendant called me and said he was going to kill me" and for the State to not then be able to play a recording of that conversation.

WilliamRuben, you can absolutely call this person and see if he will confess and yes it can be used in trial against that person.
 
Last edited:

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top