Are Recorded Conversations Admissible in New York? - Romano Law

Are Recorded Conversations Admissible in New York?

Are Recorded Conversations Admissible in New York?

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If you are anticipating, or already involved in, a court case and wish to record a telephone or in-person conversation to admit as evidence, you might be wondering whether it is legally permissible.  Importantly, there are state and federal wiretapping laws in place that may prohibit you from recording the conversations of others.  Not only would an illegally recorded conversation be inadmissible, but you could also be opening yourself to the risk of criminal prosecution or civil liability.  While New York State laws are not as strict as in some states like Florida, there are still rules to follow to avoid issues.

New York State Law

New York is a one-party consent state.  This means that only one party must consent to the recording of an in-person or telephone conversation. It is an E felony under New York’s wiretapping law to record a conversation without at least one party’s knowledge. In other words, if you are a party to the conversation, you may record without the other person’s consent. But unless you obtain permission in advance, you are prohibited from recording a conversation in which you do not take part.   

Federal Law

Similar to New York law, federal law only requires that one party consent to the recording of a conversation.  You can record an in-person or phone conversation yourself, as long as you take part in it.  However, if the parties to the conversation are in different states, it’s essential to understand whether federal or state law applies — and if state law is applicable, which jurisdiction’s statute controls.  Generally, if both parties are within the same state, the law of that state will apply.   

Wiretapping without a court order or the necessary consent of the parties involved is a federal crime punishable by up to five years in prison and a fine of $250,000 for an individual.  A person found guilty of illegal wiretapping under federal law may also be held liable for damages, attorney’s fees, and punitive damages.  

Interstate Telephone Conversations

Phone calls often originate in one state and are made to parties in other jurisdictions.  This is often the case with conference calls in which there are several participants who join from different locations — and there can be various complexities when determining whether it is necessary to obtain consent from all parties.  When there is a conflict between the laws of two states, a court will have to consider which to apply.  If more than one jurisdiction is involved, the chances that federal law applies increases.

When is a Telephone Conversation, Lawfully Recorded by a Participant, Admissible into Evidence in a Lawsuit?

New York State courts and federal courts both consider recorded telephone conversations to be inadmissible hearsay, unless an exception applies.  There are numerous exceptions that may apply to the hearsay rule in order to have a telephone conversation admitted into evidence.  A recorded conversation may be admitted into a New York court as a party admission, a declaration against interest, or an inconsistent statement.  It may also be used for impeachment purposes or admitted as a contemporaneous statement.

Conclusion

The laws concerning recording conversations and their admissibility in a lawsuit are complex. If you are facing litigation, contact an experienced attorney, to help you determine whether a recorded in-person or phone conversation is admissible and develop a comprehensive strategy in your case.

Photo by Craig Pattenaude on Unsplash

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This Blog is made available by Romano Law PLLC for general informational and educational purposes only, not to provide specific legal advice. By using this Blog you understand that there is no attorney client relationship between you and Romano Law PLLC or any individual contributor. You should consult a licensed professional attorney for individual advice regarding your own situation.

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