Is it legal to record threatening callers? Are recordings admissible?

You question has two parts.

Part 1: can you legally record phone calls (or an in-person conversation)?

ANSWER: It depends on the jurisdiction. Some states won’t allow you to record a conversation (whether on the phone or in person) without you obtain the consent of the other party or parties to the conversation.

But other states are “single-party consent” jurisdictions, meaning (usually) that they allow you to record a phone call or conversation, 1) as long as you are a party to the conversation (you are a party to the conversation, so you can give consent without having to get the consent of any other party or parties to the conversation); and 2) you’re not recording for the purpose of committing a tort or a crime . Otherwise stated, you cannot secretly record a conversation between other people if you are not a party to the conversation yourself.

For example, in Utah, where I practice law, this is the law (Don’t let the “not acting under color of law” language worry you; “not acting under color of law” simply means, in this context, essentially acting under government authority)

Utah Code § 77-23a-4

(7)(b) A person not acting under color of law may intercept a wire, electronic, or oral communication if that person is a party to the communication or one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of state or federal laws.

So what if you live in a single party consent state, but you are calling someone who lives in a state where that person’s consent must be given before you can record a phone call? I don’t know. But if you’re living in a state that is a single-party state placing a phone call to or receiving a phone call from someone in the same state or in a state where it too is a single-party consent state, you’re probably in the clear. Make sure you get competent legal advice before you start recording phone calls.

Part 2: What kind of evidence is admissible?

ANSWER: Lawfully obtained evidence, whether a recorded phone call or live conversation, is admissible in court, as long as it’s material and relevant to the issues to be decided, as well as competent. Evidence is material if it has some logical connection with the facts of the case or the legal issues presented (Black’s law dictionary 11th ed. 2019). Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action. Evidence is “competent” if it complies with certain traditional notions of reliability.

So, for example, if you are being sued in small claims court by someone who contends you owe him $1,000 for painting your house and you have recorded telephone calls in which he calls you a liar and a cheat and a bunch of vulgar names, that recorded phone call is probably not material or relevant to the issue of whether you owe the plaintiff any money. On the other hand, if you go into court claiming that you never agreed to pay the guy $1,000 to paint your house, and he has recordings of phone calls between you and him in which you state something like, “I know you painted my house, I know I agreed to pay you $1000, but you don’t have anything in writing and it’s your word against mine, and no one will believe you, Ahhhahhhah!,” then the recordings would be highly material and relevant to the case.

Utah Family Law, LC | | 801-466-9277

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