TESTING 1, 2, 3 . . .The Use of Audio Recordings in Matrimonial Actions

October 13, 2013
By Clifford Petroske

In divorce and family law, more than any other area of law, much of what needs to be proved is undocumented. Especially where custody and domestic violence are involved, there may be nothing other than a witness’ testimony, and that may not be enough to convince a judge. Audio recordings get at the truth — fast — and can spell the difference between the Court believing you, or dismissing your case.

The best recordings capture unguarded moments. To make such a recording, your spouse must be completely unsuspecting. Fortunately, it is entirely legal in New York to record a conversation with somebody without his or her knowledge. Although your attorney may need to give opposing counsel a copy of the recording before the trial, the adversary cannot object to the recording simply because your spouse did not consent to being recorded. If the recording is properly made and handled, it will come into evidence and be played in the courtroom. In fact, if a recording “puts the lie” to your spouse’s case, sometimes you can avoid a trial altogether and be in position to dictate the terms of a good settlement.

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.

Once you have made a recording, listen to it as soon as possible, while the conversation is still fresh in your mind. That way, in court you can attest that the recording is a true and accurate depiction of the conversation. This may sound self-evident, but it is an important part of what you must say in court before the judge will even consider listening to your recording. After you have listened, copy it to disc so that there will be a handy way of presenting the recording in court. Here again, in court you will need to say that the CD is a true and accurate copy, so be sure to listen to the CD as soon as the copy has been made. Without a CD, you will need to put your iPhone into the evidence locker. It could be months before you see it again.

Of equal importance is something called “chain of custody.” Once you have burned a disc, you must keep it someplace only you have access, then personally carry it to court on the day of your hearing. That way you can attest that the recording has not been tampered with since only you had it at all times. Of course, it should go without saying that you should never tamper with a recording. Do not add, delete or enhance any recorded material.

It is always a good idea to have a transcript of a recording made, with a copy provided to your spouse’s attorney before the hearing. One more thing, never record conversations with your children. Although it may be tempting, especially in a custody dispute, the courts take a dim view of it because of the “potential to undermine the trust and confidences that should exist between parent and child.” Should you come to court with such a recording, it may undermine your case.

Done properly, a good recording is like a good picture — it’s worth a 1000 words. But like anything else, your success will depend on good preparation. It’s good to have a plan of what you will say, and practice using the equipment beforehand. If you have any questions, your attorney should be able to walk you through it.