As easy as it is to record a conversation today, doing so is not always legal. Michigan laws are less restrictive than laws in states like Florida, but it is crucial to understand how to comply with both state and federal recording law to reduce your exposure to criminal and civil liability and to ensure the admissibility of any recordings as evidence in court.
Michigan is a one-party consent state, meaning only one person involved in a phone call or in-person conversation needs to consent to a recording of that conversation. In other words, you can record a conversation you are a part of without the permission of the other individual. However, you may not record a conversation that you are not part of unless you obtain advance consent from all of the conversation’s participants. Importantly, recording a conversation in a public place where individuals do not reasonably expect privacy does not require any party’s express consent.
It is a felony under Michigan wiretapping law for a third-party to record a conversation without the consent of both parties or to disclose an illegally recorded conversation. The felony is punishable by up to two years in prison, a fine of $2,000, or both. Further, violating this law can also open you to civil liability in the form of an award of damages and an injunction by a court prohibiting additional eavesdropping.
Similar to Michigan law, federal law only requires that one party consent to the recording of a conversation. Violating the federal recording law is a 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 in civil court for damages, attorneys’ fees, and punitive damages.
Phone calls often involve parties in different locations. Where a phone call involves parties from various states, determining which state law controls and who needs to consent to the recording is a complex exercise. When there is a conflict between the laws of two states, a court will decide which to apply. If parties in multiple states are involved, a court is likely to apply federal law.
Because of Michigan’s eavesdropping laws, an illegally recorded conversation is unlikely to be admissible in a Michigan court. Moreover, even legally recorded conversations may not be admissible because of the hearsay rule. The hearsay rule prohibits a statement made out-of-court from being used as evidence to prove the truth of that statement. For example, a legally recorded conversation between you and your neighbor in which your neighbor says, “I have stolen packages from our mailroom,” would not be generally admissible in court to prove that your neighbor stole packages. The recording may be admissible to prove that your neighbor made the statement, but not to prove that the statement is actually true. This can be a hard line to draw without the assistance of an experienced litigator.
However, there are also numerous exceptions to the hearsay rule that may allow a legally recorded conversation to be admitted as evidence, but illegally recorded conversations are less likely to be admissible under these exceptions.
The law on recorded conversations is complex. If you are facing a dispute, consult an experienced attorney about how the law may impact your case. Contact us to speak with a member of our team.