Husband’s digital voice activated audio recording of Wife, precluded from evidence.

Was the Audio Recording Obtained Illegally? Is it Admissible?

Litigants, including parties to a divorce, often ask if they can record a party or witness, in a dispute.  The recording will not be admissible in a Connecticut court, if it is obtained illegally.  Connecticut General Statute §52-184a provides:  “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.” Unauthorized access to a “computer system” is also a crime in Connecticut, and therefore could be precluded.  See CGS 53a-251.  The prohibition on use of illegally obtained recordings in court (i.e. trials or hearings), has been extended to their use at depositions.

In Simonson vs. Simonson, FA15-6025703, the Court precluded the use of an audio recording. The husband recorded his wife’s telephone conversation by placing a recording device behind the driver’s side seat of a truck, that the husband owned.  When the Wife spoke to a non-party on the telephone, her voice (but not the voice of the non-party) was secretly recorded.  The husband’s attorney attempted to play the recording during a deposition, but he was precluded from doing so, and the recording was further precluded from being used at trial.

A different result may have been obtained, if the recording was not a telephone conversation, and if at least one party to the conversation consented to the recording.  Connecticut judges frequently admit into evidence, recordings made by a spouse of the other spouse, when the recording spouse was present and a party, to the recorded conversation.

“Eavesdropping” in Connecticut is a Class D felony, punishable by a prison term of one to five years, and a fine of up to $5,000.  However civil / family court judges may exclude illegally obtained evidence, even if a person is not arrested or convicted of a crime.

A person commits the crime of eavesdropping “when he unlawfully engages in wiretapping or mechanical overhearing of a conversation”.

General Statutes §52-187(a) provides:

“Wiretapping” means the intentional overhearing or recording of a telephonic or telegraphic communication or a communication made by cellular radio telephone by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment. The normal operation of a telephone or telegraph corporation and the normal use of the services and facilities furnished by such corporation pursuant to its tariffs shall not be deemed “wiretapping”. (2) “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. (3) “Unlawfully” means not specifically authorized by law. For purposes of this section, “cellular radio telephone” means a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones.

General Statutes §52-570(d)(a) provides:

No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.

Committing a “computer crime” can also result in preclusion of evidence.  See C.G.S. §53a-251(b) (“unauthorized access to a computer system”):

(1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization.

(2) It shall be an affirmative defense to a prosecution for unauthorized access to a computer system that: (A) The person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, had authorized him to access; (B) the person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, would have authorized him to access without payment of any consideration; or (C) the person reasonably could not have known that his access was unauthorized.

The Memorandum of Decision in the Simonson case is available here:

https://docs.google.com/a/joeldefelice.com/viewer?a=v&pid=sites&srcid=am9lbGRlZmVsaWNlLmNvbXx3d3d8Z3g6M2FmMDZhNTU1MDZjNTA1OQ

Real Estate “Closing Customs” in Connecticut

When buying or selling real estate, your closing attorney in Connecticut will usually follow the customs of the local county bar.

Customs address questions, such as:

            Where is the closing held?

            Who holds the deposit?

            How are closing expenses and purchase price paid at closing?

A common question is “Who notifies tax collector / assessor and utilities of changes in ownership of property?”  In Hartford and Tolland County, the custom is:

ANSWER:  Utility companies require that purchaser and seller call them directly. Tax assessor and collector are notified by the Town Clerk once documents are received for recording. (Hartford County; Tolland County)

To review CATIC’s “A Guide to Closing Customs in Connecticut”, use this link:

https://www.catic.com/Consumers/Resources/ClosingCustomsCT.aspx

Two Tolland County Law Firms are Joining Practices

Introducing … 

MR&DeF_Logo_sm

 

 

 

 

MORE THAN 90 YEARS OF COMBINED LEGAL EXPERIENCE

Two well-established law firms in Tolland County, Connecticut are joining their law practices.  Marder, Roberson & DeFelice Law Offices, LLC will begin operations on January 1, 2015.

By combining legal practices of Marder & DeFelice Law Offices, LLC, and The Law Office of Dale C. Roberson, LLC, this new law firm can provide a depth of experience in multiple practice areas including litigation, bankruptcy, estate planning, family law, business law, criminal law, and commercial and residential real estate.

We are focused on growing our law practices to provide enhanced services, so that we may better serve our clients.

The firm will be located at:

76 South Frontage Road, Vernon, Connecticut

Please contact us for further information.  Our telephone numbers, email, and web-site information, will remain unchanged:

www.marder-law.com
Tel. (860) 871-8000
Fax (860) 871-8307
office@marder-law.com

www.robersonlaw.net
Tel. (860) 872-3000
Fax (860) 872-3626
dcrlaw@sbcglobal.net