As easy as it is to record a conversation today, doing so is not always legal. Tennessee 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.
Tennessee is a “one-party consent” state, meaning only one person in a phone or in-person conversation needs to consent to a recording of that conversation. In other words, you can record a conversation that 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 (often referred to as a “wiretap”) unless you obtain advance consent from one of its participants.
It is a felony under Tennessee wiretapping law to record a conversation without one party’s consent or to disclose an illegally recorded conversation. Violating this law can also open you to civil liability in the form of an award of damages and attorneys’ fees to injured parties.
Similar to Tennessee state law, federal law also 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 and attorneys’ fees.
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.
An illegally recorded conversation is unlikely to be admissible in a Tennessee 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.
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 or have questions about these issues, consult an experienced attorney about how the law may impact your situation. Contact us to speak with a member of our team.
Contributions to this blog by David Fish.