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Is it legal to use audio/voicde recorder to document counseling or verbal reprimand?
- Thread starter ACX
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alabamaman
Junior Member
"It would be a safe bet to say no it is not legal."
Can you list what UCMJ action this would violate? I can't think of one.
Can you list what UCMJ action this would violate? I can't think of one.
There may be a regulation or a command policy that covers the use of hidden recording equipment. Under federal law, only one party's consent is required to record a conversation. Every state has its own law on recording telephone conversations.
Twelve states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Be aware that you will sometimes hear these referred to inaccurately as “two-party consent” laws. If there are more than two people involved in the conversation, all must consent to the taping.
Thirty-eight states and the District of Columbia permit individuals to record conversations to which they are a party without informing the other parties that they are doing so. These laws are referred to as “one-party consent” statutes, and as long as you are a party to the conversation, it is legal for you to record it. (Nevada also has a one-party consent statute, but the state Supreme Court has interpreted it as an all-party rule.)
alabamaman
Junior Member
A competent attorney would argue that military orders or reprimands are NOT "conversations" in the legal sense, and thus don't fall under any of these restrictions.
And I'm pretty sure that if someone is attempting to document a crime or other wrongdoing (the original poster's statement), then no crime is being committed. Certainly, federal whistleblower regulations may come into play.
Obviously, "abuse of authority" and "capricious reprimand" are pretty vague things. Perhaps that's why this soldier wants to tape someone, so that JAG can review it. Or maybe give it to the BN CMDR during an "open door" and ask what he thinks...
Let's toss some scenarios around...
Private Smith claims that his CO uses racial slurs. PVT Smith tapes his CO doing so.
PVT Jones claims that her Platoon Sgt is sexually harrassing her. PVT Jones tapes him doing so.
Who is in trouble? I highly doubt the PVTs will be the subject of any UCMJ actions.
I can't imagine a scenario in which PVT Smith somehow gets "busted" taping his CO or a SGT, and they invoke STATE LAW! JAG would laugh them out of the office (in my opinion). There certainly isn't anything in the UCMJ.
And I'm pretty sure that if someone is attempting to document a crime or other wrongdoing (the original poster's statement), then no crime is being committed. Certainly, federal whistleblower regulations may come into play.
Obviously, "abuse of authority" and "capricious reprimand" are pretty vague things. Perhaps that's why this soldier wants to tape someone, so that JAG can review it. Or maybe give it to the BN CMDR during an "open door" and ask what he thinks...
Let's toss some scenarios around...
Private Smith claims that his CO uses racial slurs. PVT Smith tapes his CO doing so.
PVT Jones claims that her Platoon Sgt is sexually harrassing her. PVT Jones tapes him doing so.
Who is in trouble? I highly doubt the PVTs will be the subject of any UCMJ actions.
I can't imagine a scenario in which PVT Smith somehow gets "busted" taping his CO or a SGT, and they invoke STATE LAW! JAG would laugh them out of the office (in my opinion). There certainly isn't anything in the UCMJ.
alabamaman
Junior Member
What am I full of?
Can you instead focus on an intelligent response to what I posted?
Can you instead focus on an intelligent response to what I posted?
I posted examples of legitimate laws that hold precedence over the situation, you posted your opinion. You get two guesses as to which one holds more weight?
alabamaman
Junior Member
Well, that's what attorneys are for...
Are you an attorney?
Are you an attorney?
alabamaman
Junior Member
??? For recording his CO or SGT chewing him out??? 
Come on, now... We're not talking about recording the stockade, arms room, or detainees... Or the movement plan. Or anything remotely sensitive.
Here's the original question:
+++
Can an audio recorder be legally used to substantiate capricious reprimand or abuse of authority of a superior Officer?
+++
A COMPETENT ATTORNEY would drag this out til the unit grew tired of trying to burn this soldier. A GOOD ATTORNEY would get this laughed out of the system. A retired JAG Colonel/now defense attorney would seriously hurt someone's feelings with this case...
Especially if the soldier was well-regarded, and the CO or SGT had a rep as a prick. Interesting things are found in 201 files, ya know. Bad OER/NCOER... Hmmmm.... That would be the first thing subpoened! Followed by sworn statements from EVERYBODY I could lay hands on.
A thoughtful prosecutor would leave this one alone... IN MY OPINION.
And, by the way, how do you catch someone with a concealed recorder? Mine LOOKS JUST LIKE AN MP3 PLAYER!!! If someone suddenly told me to empty my pockets, or grabbed me or tried to frisk me... well, there would suddenly be some charges a lot more serious than "recording."
Your thoughts?
Come on, now... We're not talking about recording the stockade, arms room, or detainees... Or the movement plan. Or anything remotely sensitive.
Here's the original question:
+++
Can an audio recorder be legally used to substantiate capricious reprimand or abuse of authority of a superior Officer?
+++
A COMPETENT ATTORNEY would drag this out til the unit grew tired of trying to burn this soldier. A GOOD ATTORNEY would get this laughed out of the system. A retired JAG Colonel/now defense attorney would seriously hurt someone's feelings with this case...
Especially if the soldier was well-regarded, and the CO or SGT had a rep as a prick. Interesting things are found in 201 files, ya know. Bad OER/NCOER... Hmmmm.... That would be the first thing subpoened! Followed by sworn statements from EVERYBODY I could lay hands on.
A thoughtful prosecutor would leave this one alone... IN MY OPINION.
And, by the way, how do you catch someone with a concealed recorder? Mine LOOKS JUST LIKE AN MP3 PLAYER!!! If someone suddenly told me to empty my pockets, or grabbed me or tried to frisk me... well, there would suddenly be some charges a lot more serious than "recording."
Your thoughts?
It still depends on the work environment.
If there are ANY classified materials used during the line of duty, there are no recording devices of any kind allowed. Not even cell phones, as they can take pictures of documents.
Now, if the OP is just some random mechanic in a motorpool somewhere, then it wouldn't be an issue. But if he were a mechanic for avionics targeting systems, it would suddenly come into play.
If there are ANY classified materials used during the line of duty, there are no recording devices of any kind allowed. Not even cell phones, as they can take pictures of documents.
Now, if the OP is just some random mechanic in a motorpool somewhere, then it wouldn't be an issue. But if he were a mechanic for avionics targeting systems, it would suddenly come into play.
Catch someone in the background discussing something that rated as even "sensitive" and see what happens: Unit manning, training status, unit readiness, or someone elses personnel actions.....stuff like that and see how fast that recording goes for evidence for the soldier to evidence against.??? For recording his CO or SGT chewing him out???
Come on, now... We're not talking about recording the stockade, arms room, or detainees... Or the movement plan. Or anything remotely sensitive.
Here's the original question:
+++
Can an audio recorder be legally used to substantiate capricious reprimand or abuse of authority of a superior Officer?
+++
A COMPETENT ATTORNEY would drag this out til the unit grew tired of trying to burn this soldier. A GOOD ATTORNEY would get this laughed out of the system. A retired JAG Colonel/now defense attorney would seriously hurt someone's feelings with this case...
Especially if the soldier was well-regarded, and the CO or SGT had a rep as a prick. Interesting things are found in 201 files, ya know. Bad OER/NCOER... Hmmmm.... That would be the first thing subpoened! Followed by sworn statements from EVERYBODY I could lay hands on.
A thoughtful prosecutor would leave this one alone... IN MY OPINION.
And, by the way, how do you catch someone with a concealed recorder? Mine LOOKS JUST LIKE AN MP3 PLAYER!!! If someone suddenly told me to empty my pockets, or grabbed me or tried to frisk me... well, there would suddenly be some charges a lot more serious than "recording."
Your thoughts?
Some installations and work areas have specific policies against recording devices and cameras....and those areas are alot more common than you think.
A "good attorney" wouldn't get it laughed out of court because if the order was "no recording devices" and he brought one.... he would have violated Article 92 of the UCMJ Failure to obey order or regulation . Btw, it's carries a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. The elements of the crime are pretty simple: that the lawful order or regulation existed, you had a duty to obey it, and you failed to obey it. If this was the case....it's pretty slam-dunk: he has the policy and your recording....that's all the evidence he needs to prove all three elements. If all the soldier was getting was an a**-chewing on the recording...I don't think that would be looked upon as a valid defense in the absence of his superiors committing a chargeable offense on them.
In this case, I would recommend that the soldier move up the chain-of-command to resolve his/her issue or at least contact the installation legal office to find out what they think a before recording the session......
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alabamaman
Junior Member
What I'm referring to is that the original poster, the one asking the original question, felt that something WRONG was going on. He asked, basically, could he record this. Remember, he used the terms "arbitrary and capricious." Chargeable offenses? um... no. But maybe it's something the chain of command needs to hear. Literally. Not "hear about", but actually "hear."
My OPINION (which is what we are all offering: opinions) is that he would be legally in the clear. A "no recording device" policy WOULD NOT hurt this soldier if he were documenting wrongdoing. (again, in my opinion). Yes, we all agree this is a gray area, and his first call should be to JAG.
No one addressed the hypothetical situations I mentioned: racial slurs or sexual harrassment.
Do you think they would courtmartial a soldier who recorded a superior using racial slurs, no matter where they worked? I don't care if it was in a div TOC... or deep inside Ft. Huachuca (intel land, for those who don't know).
A good lawyer would bat that to the moon, and get him a sweet transfer to boot. Same for sexual harrassment.
"Hey, I recorded my BnCmdr calling me a n*gger! Listen to this..."
"Put your hands up, soldier! You're under arrest!"
I just don't see it.
I agree that a soldier's "ass chewing" doesn't fall in the same CLEAR CUT area, but, as I keep saying, a good lawyer could run with it. You hire a retired JAG O-6, and if you have some money... You will be surprised what they can do.
All this is assuming he gets "caught" recording somehow. As I said, I have a recorder that looks like an MP3 player. And an ink pen. And.. well, I'm not telling.
If I were recording in an area I shouldn't be, I would anonymously email the audio to various people who should hear it... Attorneys at JAG, the SMAJ, REPORTERS, whoever. But "embarrassing" a superior often brings the same results as getting him removed.
If the Div command sergeant major got a recording of say, a 1SG sounding like an idiot, especially in front of a formation, he would probably be inclined to come down with a hammer. Most NCO business gets handled like that in the Army. ESPECIALLY if media sniffs around. Or an officer makes a call or two.
Now, if it was an officer in the wrong... different rules.
Again, my opinion.
My OPINION (which is what we are all offering: opinions) is that he would be legally in the clear. A "no recording device" policy WOULD NOT hurt this soldier if he were documenting wrongdoing. (again, in my opinion). Yes, we all agree this is a gray area, and his first call should be to JAG.
No one addressed the hypothetical situations I mentioned: racial slurs or sexual harrassment.
Do you think they would courtmartial a soldier who recorded a superior using racial slurs, no matter where they worked? I don't care if it was in a div TOC... or deep inside Ft. Huachuca (intel land, for those who don't know).
A good lawyer would bat that to the moon, and get him a sweet transfer to boot. Same for sexual harrassment.
"Hey, I recorded my BnCmdr calling me a n*gger! Listen to this..."
"Put your hands up, soldier! You're under arrest!"
I just don't see it.
I agree that a soldier's "ass chewing" doesn't fall in the same CLEAR CUT area, but, as I keep saying, a good lawyer could run with it. You hire a retired JAG O-6, and if you have some money... You will be surprised what they can do.
All this is assuming he gets "caught" recording somehow. As I said, I have a recorder that looks like an MP3 player. And an ink pen. And.. well, I'm not telling.
If I were recording in an area I shouldn't be, I would anonymously email the audio to various people who should hear it... Attorneys at JAG, the SMAJ, REPORTERS, whoever. But "embarrassing" a superior often brings the same results as getting him removed.
If the Div command sergeant major got a recording of say, a 1SG sounding like an idiot, especially in front of a formation, he would probably be inclined to come down with a hammer. Most NCO business gets handled like that in the Army. ESPECIALLY if media sniffs around. Or an officer makes a call or two.
Now, if it was an officer in the wrong... different rules.
Again, my opinion.
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You must remember that the illegal gathering of information, even if it definitively evidences an illegal act, is still illegal.
You said, "And I'm pretty sure that if someone is attempting to document a crime or other wrongdoing (the original poster's statement), then no crime is being committed. Certainly, federal whistleblower regulations may come into play."
That is incorrect. Just because an illegal act of any type is proven DOES NOT mean that the crime is automatically forgiven.
In fact, quite the opposite. I suggest you research the term "fruit from the poisoned tree" before you respond again. Results from illegal methods are thrown out of court every day... and then the crime will go unpunished.
You said, "And I'm pretty sure that if someone is attempting to document a crime or other wrongdoing (the original poster's statement), then no crime is being committed. Certainly, federal whistleblower regulations may come into play."
That is incorrect. Just because an illegal act of any type is proven DOES NOT mean that the crime is automatically forgiven.
In fact, quite the opposite. I suggest you research the term "fruit from the poisoned tree" before you respond again. Results from illegal methods are thrown out of court every day... and then the crime will go unpunished.
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