Admissibility of Evidence - Admissibility of Audio and Visual Recordings
Tape recordings are admissible in evidence provided they do not constitute illegal eavesdropping. As long as they are made with the consent of one party to the conversation they are permissible. Civil Practice Law and Rules §4506 provides in substance that evidence obtained by the commission of criminal eavesdropping, as defined by New York Penal Law §250.05, is inadmissible in both civil and criminal cases. New York Penal Law §250.00 states that a person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation. "Wiretapping means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than the sender or receiver, by means of any instrument, device or equipment . . . Mechanical overhearing of a conversation means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment."
It is permissible to record your own conversation with any other person. Where a party records his or her own conversation with the children, for example, at least one of the parties gave consent to the recording, but where the recording of the conversation between the children and the other parent was made by a nonparty to the conversation, legal issues arise.
In Berk v Berk[1] the court granted a mother’s motion to suppress, pursuant to Civil Practice Law and Rules §4506, certain taped telephone conversations between the mother and children obtained without the mother’s consent. The Appellate Division held that: ". . . Without proof of consent of at least one party to the conversations, the taped conversations may not be put into evidence (see Civil Practice Law and Rules §4506)...."
[1] 70 App Div 2d 943, 417 NYS2d 785 (2 Dept 1979).
Tape recordings are admissible in evidence provided they do not constitute illegal eavesdropping. As long as they are made with the consent of one party to the conversation they are permissible. Civil Practice Law and Rules §4506 provides in substance that evidence obtained by the commission of criminal eavesdropping, as defined by New York Penal Law §250.05, is inadmissible in both civil and criminal cases. New York Penal Law §250.00 states that a person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation. "Wiretapping means the intentional overhearing or recording of a telephonic or telegraphic communication by a person other than the sender or receiver, by means of any instrument, device or equipment . . . Mechanical overhearing of a conversation means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment."
It is permissible to record your own conversation with any other person. Where a party records his or her own conversation with the children, for example, at least one of the parties gave consent to the recording, but where the recording of the conversation between the children and the other parent was made by a nonparty to the conversation, legal issues arise.
In Berk v Berk[1] the court granted a mother’s motion to suppress, pursuant to Civil Practice Law and Rules §4506, certain taped telephone conversations between the mother and children obtained without the mother’s consent. The Appellate Division held that: ". . . Without proof of consent of at least one party to the conversations, the taped conversations may not be put into evidence (see Civil Practice Law and Rules §4506)...."
[1] 70 App Div 2d 943, 417 NYS2d 785 (2 Dept 1979).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
|