While audio recordings can be valuable evidence, they can also be harmful to you and your case if not handled properly. The first rule is that the person making the recording must actually be present at the place where the recording is being made. If not, the recording is illegal. Not only will the recording not come into evidence (and not get played in the courtroom), but it may subject you to criminal (felony) charges as an illegal “wiretap.” Helpful hint: Only record conversations in which you are participating. Never leave your recording device in record mode and walk away. Even if you are in the room recording somebody who is talking to somebody else, you may have difficulty proving you were actually there, and subject yourself to possible criminal charges.
Equally important is quality. The recording must be substantially audible throughout, or the Court will not listen to it. Numerous reported cases have rejected audio recordings that are partially inaudible. As a practical matter, this can be challenging. Audibility is always at odds with the need to conceal the device. Fortunately, iPhones and other smartphones have recording apps that work well, and the phone looks innocent enough to escape detection. However, if the phone or other recording device is concealed in your pocket, or you are standing in the wind or where there is background or street noise, the recording may be muffled. The best advice is to practice recording before you get into a situation where it matters. Make sure your practice run is under similar circumstances to the situation you expect to encounter. Try different ways of holding or carrying the device. Remember, it must pick up everybody’s voice equally well — both yours and the target person — so be sure to speak up and not to mumble or speak too quickly. And, if possible, act naturally…
But not too naturally. Avoid sarcasm, swearing, and derogatory comments. Avoid sounding happy or arrogant at the “gotcha” moment when your spouse is finally caught on tape. And, whenever possible, be sure that your children are not present and are not audible on the recording. If the judge can hear the children on the recording, he will assume they heard you and your spouse arguing. This could reflect poorly on you for not removing the children from the situation.
Finally, keep the conversation short. If your recording goes for more than three or four minutes, it will annoy the judge. At a minimum, it will bore the judge, and s/he may not be listening well enough to really hear the good parts. To avoid being accused of tampering with the recording, all entrances and exits should be natural. To end the conversation, don’t simply turn off the recording device. Try walking away, saying good-bye, or another natural end to the conversation.