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Thread: Voice Recorder law?

  1. #1
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    I have been convinced tonight to carry a voice recorder.

    Can someone cite where it is legal to use this in court if there is interaction with law enforcement?



    Must I inform him I am recording?



    Also, is there anyway for them to prohibit me taping the conversation? I see people constantly being told to cease videotaping, and it makes me wonder.

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    Tweaker wrote:
    I have been convinced tonight to carry a voice recorder.

    Can someone cite where it is legal to use this in court if there is interaction with law enforcement?



    Must I inform him I am recording?



    Also, is there anyway for them to prohibit me taping the conversation? I see people constantly being told to cease videotaping, and it makes me wonder.
    No duty to inform as long as you're partaking in the conversation.

    Too tired to look up the laws right now though

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    Founder's Club Member - Moderator ed's Avatar
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    This is an informative resource: http://www.rcfp.org/taping

    An individual can record or disclose wire, oral, or electronic communications to which he is a party, or if one party to the communication consents. Otherwise, it is a felony. Va. Code Ann. § 19.2-62.
    A lawyer’s recording of a telephone conversation with the consent of one, but not all, parties to the conversation was found to be legal, though unethical, under Virginia law. U.S. v. Smallwood, 365 F.Supp.2d 689 (2005).
    Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of “oral communication,” Va. Code Ann. § 19.2-61; Belmer v. Commonwealth, 553 S.E.2d 123 (Va. App. 2001).
    Criminal penalties for violating the law include imprisonment for one to five years or, at the discretion of a jury or judge, confinement in jail for up to 12 months and a fine of not more than $2,500, either or both. Va. Legis. 579. A civil cause of action is authorized by statute for $100 per day of violation or $1,000, whichever is greater. Va. Code Ann. § 19.2-69. Punitive damages, attorney fees, and litigation costs can be recovered under the statute as well. Va. Code Ann. § 19.2-69.

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    There's a special statute for taping telephone conversations; it's an evidentiary rule, not a criminal statute. In order to use a tape or transcript of the recording in evidence, you must tell the other person that he/she/it is being recorded, identify all parties to the conversation, and state the date and time. Also state the date and time at the close, so it'll be obvious if editing occurred.

    All other recordings are governed by the Eavesdropping, Wiretapping, and Electronic Surveillance Act, the federal statute that the former president admitted having violated thousands of times over on national TV a while back. It states that the act of recording, the possession of the recorded matter, or the use of the recorded matter, is a felony. All states have enacted variants of the federal statute, which means that both state law and federal law apply (you can get out of state penitentiary on one charge, then go to trial in federal district court on exactly the same charge - and you thought double jeopardy was prohibited by the Constitution!).

    Last time I checked, six states required that every party to the conversation have knowledge of the recording, and these include Pennsylvania and Maryland. The others, and the federal statute, require only that one party to the conversation have knowledge (i.e., you can't go to prison for recording your own conversation with someone). Virginia is a "one-party" state.

    In order to be prohibited, the recording must be of a "private conversation". That means that it has to take place in private, with a reasonable expectation of privacy (for fourth amendment purposes, not first amendment). So anyplace that eavesdropping is possible and not controlled for, such as a secluded table at a restaurant, is not private. If a person is in his own bedroom with the door shut, he has a reasonable expectation of privacy. Not if he's out in the hallway of an apartment building.
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    Regular Member TFred's Avatar
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    I am now convinced that "all party consent" laws are designed to foster corruption and protect criminals.

    Specifically in Maryland, they used this law in an attempt to punish Linda Tripp for exposing what was at that time probably the greatest Presidential scandal in history, and now it looks like Maryland may attempt to punish these two brave kids for their exposure of what may eventually surpass the Lewinsky scandal in scope and horror, the ACORN brothel videos.

    State's Attorney Considers Prosecuting ACORN Video Posters

    I won't copy the entire article here, as it contains embeds of the two YouTube videos, but here is the quoted statement from the State's Attorney's Office for Baltimore City.


    STATEMENT OF STATE’S ATTORNEYS OFFICE FOR BALTIMORE CITY RELATIVE TO THE ALLEGED BALTIMORE ACORN INCIDENT

    Baltimore, MD – September 11, 2009 – We have received inquiries from citizens and the media asking whether the Baltimore City State’s Attorneys Office would initiate a criminal investigation for acts allegedly committed at ACORN offices located in Baltimore. The only information received in reference to this alleged criminal behavior was a YouTube video. Upon review by this office, the video appears to be incomplete. In addition, the audio portion could possibly have been obtained in violation of Maryland Law, Annotated Code of Maryland Courts and Judicial Proceedings Article §10-402, which requires two party consent.

    If it is determined that the audio portion now being heard on YouTube was illegally obtained, it is also illegal under Maryland Law to willfully use or willfully disclose the content of said audio. The penalty for the unlawful interception, disclosure or use of it is a felony punishable up to 5 years.
    To stay on topic, it appears to me the lesson to be learned here is that if you encounter illegal behavior from a Maryland LEO, well, you're toast, and there isn't much you can do about it... unless there is some sort of an exception due to the public service nature of their job. I guess the entire state of Maryland joins the ranks of Hazzard County, Georgia, and Jericho, Arkansas, for "hillbilly justice".

    This is yet one more reason to avoid the state of Maryland like the plague... Unless you are a criminal. I am starting to sense a theme.

    TFred (very happy to live and work south of the Potomac River!)

  6. #6
    Regular Member riverrat10k's Avatar
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    TFred wrote:
    I am now convinced that "all party consent" laws are designed to foster corruption and protect criminals.

    Specifically in Maryland, they used this law in an attempt to punish Linda Tripp for exposing what was at that time probably the greatest Presidential scandal in history, and now it looks like Maryland may attempt to punish these two brave kids for their exposure of what may eventually surpass the Lewinsky scandal in scope and horror, the ACORN brothel videos.

    State's Attorney Considers Prosecuting ACORN Video Posters

    I won't copy the entire article here, as it contains embeds of the two YouTube videos, but here is the quoted statement from the State's Attorney's Office for Baltimore City.


    STATEMENT OF STATE’S ATTORNEYS OFFICE FOR BALTIMORE CITY RELATIVE TO THE ALLEGED BALTIMORE ACORN INCIDENT

    Baltimore, MD – September 11, 2009 – We have received inquiries from citizens and the media asking whether the Baltimore City State’s Attorneys Office would initiate a criminal investigation for acts allegedly committed at ACORN offices located in Baltimore. The only information received in reference to this alleged criminal behavior was a YouTube video. Upon review by this office, the video appears to be incomplete. In addition, the audio portion could possibly have been obtained in violation of Maryland Law, Annotated Code of Maryland Courts and Judicial Proceedings Article §10-402, which requires two party consent.

    If it is determined that the audio portion now being heard on YouTube was illegally obtained, it is also illegal under Maryland Law to willfully use or willfully disclose the content of said audio. The penalty for the unlawful interception, disclosure or use of it is a felony punishable up to 5 years.
    To stay on topic, it appears to me the lesson to be learned here is that if you encounter illegal behavior from a Maryland LEO, well, you're toast, and there isn't much you can do about it... unless there is some sort of an exception due to the public service nature of their job. I guess the entire state of Maryland joins the ranks of Hazzard County, Georgia, and Jericho, Arkansas, for "hillbilly justice".

    This is yet one more reason to avoid the state of Maryland like the plague... Unless you are a criminal. I am starting to sense a theme.

    TFred (very happy to live and work south of the Potomac River!)
    TFred-

    I have been thinking about this since the story broke. My experience here on OCDO made me aware that the Baltimore tape could be an issue.

    I was thinking that a copy should be sent to the DA's office with a letter stating that it was an attempt at a citizens arrest to gather information about a criminal gang. The letter would request an investigation of what a citizen perceives as criminal activity.

    The tape may not be admissable in court, but should be "probable cause" for Maryland to investigate the organization. Possibley they could still prosecute under their Draconian laws, but I would see this as similar to my answering machine recording a death threat after it and I both picked up the line. Maybe not admissable but certainly worthy of investigation.



    riverrat




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    TFred wrote:
    I am now convinced that "all party consent" laws are designed to foster corruption and protect criminals.
    ...
    Well, there's a revelation! Is it any wonder that all the states that have such statutes are those with histories of official corruption? Those statutes are they way they are precisely because the politicians were afraid of being indicted on the basis of wiretaps & electronic eavesdropping.


    Those are, by the way, the same ones I refer to as the "pro-crime" states because their gun laws interfere with the ability of "just plain folks" to defend themselves. Gee, do you suppose there's some reason why the states with the histories of political corruption would want the people to be unable to defend themselves?

    As to the Acorn thing - an element of the crime is that the conversation has to be a "private" conversation (4th Amendment privacy, not 1st). And that one clearly was not done in a place where the people speaking had "a reasonable expectation of privacy", because other people could have come into that room at any time.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    TFred wrote:
    I am now convinced that "all party consent" laws are designed to foster corruption and protect criminals.
    ...
    Well, there's a revelation! Is it any wonder that all the states that have such statutes are those with histories of official corruption? Those statutes are they way they are precisely because the politicians were afraid of being indicted on the basis of wiretaps & electronic eavesdropping.

    Those are, by the way, the same ones I refer to as the "pro-crime" states because their gun laws interfere with the ability of "just plain folks" to defend themselves. Gee, do you suppose there's some reason why the states with the histories of political corruption would want the people to be unable to defend themselves?

    As to the Acorn thing - an element of the crime is that the conversation has to be a "private" conversation (4th Amendment privacy, not 1st). And that one clearly was not done in a place where the people speaking had "a reasonable expectation of privacy", because other people could have come into that room at any time.
    I hope you are correct and that this protects them. In the audio that I heard earlier, one can clearly hear other voices in the background, at least a baby or babies crying. That would seem to indicate the presence of others within earshot.

    TFred

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    User, thanks for all your informative posts and being a true asset to this forum.



    I hope you are correct.
    Remember Peter Nap and Skidmark. Do them proud. Be active. Be well informed. ALL rights matter.

    "An armed society is a polite society. Manners are good when you may have to back up your acts with your life."

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    Hey NSA! *&$# you. Record this--- MOLON LABE!

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    Of course Maryland has a history of corrupt politicians. Does anyone remember the name of the politician that was involved in some funny business at the Rosecroft Racetrack? It was a long time ago and I don't remember the details.

    Thereis also quite a bit of "funny business" going on in the southernmost counties in Maryland. I know, I lived there. No details, but suffice it to say, the illegal production of spirits is a popular pastime in many places. This continues with the tacit and sometimes clear help of people in a position to stop it.

    :-X

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    MSC 45ACP wrote:
    Thereis also quite a bit of "funny business" going on in the southernmost counties in Maryland. I know, I lived there. No details, but suffice it to say, the illegal production of spirits is a popular pastime in many places. This continues with the tacit and sometimes clear help of people in a position to stop it.
    God forbid people exercise freely without the consent of their Gov't. (That's meant as a dig @ MD, not MSC 45ACP)



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    I used to live in Maryland butmoved to Virginia in 1974. Theway Maryland has moved somuch to a socialist type governmentsince then, I'lljust stay in Virginia. I reason I'll just stay put is because just as withNew York City, in Maryland you have to be a really famous, rich celebrity with deep political ties to get aCHP.In Virginia you can OC almost anywhere and can get a CHP with no problem. Plus you only need one person's consent in a voice recording.

    In November we mustsupportsupport the truly gun friendly politicians. VCDLwill survey all of them and will postwhere they claim to standon gun rights issuesthat affect us here in Virginia.Good bye to our Obama loving Governor Kaine. Do not let the door hit you in the butt on the way out! For those of you who voted for Gov. Kaine I hope you learned your lesson.

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    Makes me wonder what would happen if upon being pulled over you informed the officer that as his dash cam can record everything, you were recording the whole encounter and that it was also being transmitted to an undisclosed location in the event the vehicle and/or your effects were being impounded.

    I can imagine that it would make some people a tad uncomfortable.

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    Regular Member TFred's Avatar
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    darthmord wrote:
    Makes me wonder what would happen if upon being pulled over you informed the officer that as his dash cam can record everything, you were recording the whole encounter and that it was also being transmitted to an undisclosed location in the event the vehicle and/or your effects were being impounded.

    I can imagine that it would make some people a tad uncomfortable.
    If one could invent and market such a device that were affordable to the average joe, it would be a big asset to folks who need to worry about things like this.

    We probably aren't too far from it, with cellphone based wireless broadband technology.

    TFred


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    TFred wrote:
    darthmord wrote:
    Makes me wonder what would happen if upon being pulled over you informed the officer that as his dash cam can record everything, you were recording the whole encounter and that it was also being transmitted to an undisclosed location in the event the vehicle and/or your effects were being impounded.

    I can imagine that it would make some people a tad uncomfortable.
    If one could invent and market such a device that were affordable to the average joe, it would be a big asset to folks who need to worry about things like this.

    We probably aren't too far from it, with cellphone based wireless broadband technology.

    TFred


    With Smartphone technology being what it is currently, it's easy enough for them to go online and upload whatever your program tells them to. At that point, all you'd need is a program that can manage recording audio and uploading at the same time, preferably with the push of a button. Ideally it would also timestamp the upload start & stop.

    The act of uploading files is so old as to be beyond antique in this day & age. A simple FTP or webserver setup would handle the receiving end.

    The hard part IMO would be finding such an application that can do simultaneous recording & uploading to a remote destination on a smartphone that you own.

    Edit: Interesting, I just did a Google search (terms: audio recording uploading smartphone software) and found a piece of software that may do exactly what I listed above. The site is here: http://www.nch.com.au/recordpad/index.html

    It appears their screenshot of the Transmit page is incorrect. Some poking around found the correct screenshot. The link is here: http://www.nch.com.au/recordpad/screenshots/send.gif

    Seems that if your phone's OS is supported (mine is), you could use this software to do exactly what I described. I will have to download it and give it a try. If it'll auto-upload any recording... heh, then a confiscation of my recorder won't accomplish anything.


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    voice recording in virginia

    you only need the consent of one party that can be yourself in the commonwealth of virginia according to a report i heard from a norfolk police officer.

  17. #17
    Regular Member TFred's Avatar
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    Quote Originally Posted by opencarrypalmtrees View Post
    you only need the consent of one party that can be yourself in the commonwealth of virginia according to a report i heard from a norfolk police officer.
    Why are you dredging up so many old threads?

    This question has been asked and answered several times since this thread was last active.

    TFred

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