In the apartment behind yours, an old house with thin walls, move in very noisy neighbours. They are all gangsta like, smoking pot, partying all night, holding impromptu rap concerts for a dozen crackheads at three am. They only speak or converse at top volume, about little more than drugs/acquiring, crime/committing, guns.
Let’s say your partner is a sound tech or some such and he’s at your place dicking with his equipment, the way sound tech guys are always doing.
Now let’s say, in the course of checking his recording equipment, he manages to record the extremely loud conversation of the neighbours implicating themselves in drugs, guns and crimes.
I realize they don’t know they were being recorded, you have to tell. But no one was trying to record them they were simply being so God awful loud that the equipment picked it up.
So could this recording be used against them in a court of law or would it be inadmissible?
Depends. If what was recorded was plainly “hearable” from your house, or anywhere else you’re allowed to be, its fair game. If you had to plant a bug or use electronic equipment to amplify the converstion, it would be a wiretap and therefore inadmissible and probably illegal.
It depends on the speaking party’s expectation of privacy. Generally speaking, either at least one party to a conversation must consent to the recording or there must be no reasonable expectation of privacy (e.g. shouting so loud as to be heard in the next apartment) for the tape to be admissible in court. I say “Tape 'em” but be aware you’d have to testify in order for the tapes to come into evidence.
The Fourth Amendment only protects against state action. Recordings made surreptitiously by private parties are admissible. On the other hand, Illinois, at least, makes non-consensual recording of others a crime, but that does not go to the admissibility of the collected evidence.
Which suggests that, in some places at least, if you hand such a tape over to the cops, you may also be handing them evidence of your own(or your friend’s) crime.
I recently saw a lecture by a cop that seems relevant – about recording an interrogation of a criminal suspect. Even if the suspect confesses, the tape itself is not evidence. The cop witnessing the confession provides the evidence. IOW, he uses the tape to write up his report, and then he recycles the tape in the next interview. He does not keep the tape as evidence for a future trial.
Likewise, if you and your friend hear these admissions with your own ears, the existence of the tape may not be the evidence that would be used in a criminal trial. The evidence would be your testimony at trial. The tape would provide validation of your evidence if the police were doubtful, or if a defense attorney challenges your claims.
So… I wonder what the intent of the OP is. If you are wondering whether you can simply hand the tape to the police, and not have to make an appearance in court at a resulting trial, it would seem to me this would be an extremely unlikely outcome.
The recording is evidence. What must be done now is that a foundation needs to be laid attesting to how the recording came into existence and why the fact-finder can rely on it as faithfully reproducing what it purports to record.
Why then is the cop routinely destroying the evidence before there is even a trial? The tape is not introduced as evidence because it no longer exists.
I will look for a link to this cop’s lecture. It was in a thread here not too long ago. I believe this guy was a Virginia cop, but I may be misremembering that.
Here is the cop’s presentation – called “Don’t talk to Cops, Part 2”. It’s a lecture to law students by a cop, mostly about interrogation and confessions. He’s a Virgina Beach cop. It’s more than 20 minutes, but the recording comments are just past 18 minutes in.
Listening to it agin, he does say have an audio recording is nice, but it is “extra” and not necessary.
And now having thought about it a bit more, I think I misinterpreted what the cop said. It would be evidence if he saved the recording, and it was introduced by the prosecution, but such evidence is not necessary in most cases given that a cop’s direct testimony would introduce the very same information to the case.
And I realize this is going pretty far afield from the OP’s question. And to answer it more directly, if the OP and/or friend were willing to stand up and testify as to the circumstances of the recording, and that the recording was a true and unaltered presentation of what was actually said, yes I imagine the tape would be admissible evidence. But in doing so you might be opening yourself up to some adverse legal consequences.
Now, if you sent this as a form of anonymous tip to the cops, it might be enough for them to begin an investigation of these people, but probably not be in itself sufficient to prosecute them solely on the basis of what they ‘confess’ to on the tape,
(1) Cops have an exaggerated notion of how much law they know.
(2) I think the cop got lucky, ordinarily the Best Evidence Rule is going to bar introducing a transcript of a deliberately erased audiotape. Depending on the contents of the statement, the judge made a reversible error.
(3) But (and this is sort of the eventuality the Best Evidence Rule is designed to protect against), I’d really prefer seeing the actual hearing transcript, rather than rely on this cop’s recounting of it. (Which I know you don’t have, I just mean that what we have here on YouTube isn’t exactly unimpeachable.)
Note as well that the cop said that the police dept records all the interrogations and those recordings are presumably not destroyed. All he was referring to was his personal recording. In fact he mentions a tactic where he deliberately puts the recorder on the table and makes a big deal of turning it off to give the impression that the following conversation is “off the record”. Of course the subsequent conversation isn’t off the record and anything the suspect says will be used against him/her. He further says that when he testifies he isn’t saying anything about what the recording said, he is testifying as to what he personally heard. He doesn’t have to refer to or bring up the recording he made. IANAL, but since the recording isn’t being used as evidence, whether it is destroyed or not isn’t relevant. Now I contend that all interrogations should be recorded and those recordings should be evaluated and used as evidence both for and against. But that is just my opinion/preference. Since the authorities refuse to protect our emails and freely use them against the writer, why shouldn’t turnabout be fair play? Recorders are cheap and easy.
Anyway, back to the OP. Frankly it seems to me a better idea is to talk to a senior police officer ahead of time and get it arranged that the next time there is a loud and incriminating party next door, a patrolman will quietly stop by for a visit and take notes. If a recording is desired that can be arranged. Once a police officer hears the conversations, appropriate actions can be taken. Set things up in advance, not after the fact.
