It is known that there are many federal and state laws which prohibit surreptitious recordings as well as monitoring of audio conversations. All surreptitious recordings are divided into two categories: video recordings and audio recordings. In most states, video recordings are considered to be legal evidence with and without consent or knowledge of the other party, while audio recordings are regarded as illegal if one of the parties is not informed.
In our case, two adult males who were arrested for committing illegal action (the vehicle license plate and V.I.N. number comes back stolen), are considered to be criminals. However, they were not asked any questions concerning their crime and they were not informed of their Miranda rights. They were just placed in the back seat of the patrol car, where digital voice recording device was left on. It means that they were not informed of the process of audio recording of their conversation. In other words, this audio recording was made without their consent or knowledge. Although the information which was recorded on the digital voice recording device might be truthful, because it represented the details of the process of stealing the car by these subjects, it cannot be used as legal evidence in the court. In this case, the defense can argue that the surreptitious recording of the suspects’ conversations which was made without their consent violates the rights guaranteed by the Fourth, Fifth, and Sixth Amendments to the Constitution of the United States. Besides, such surreptitious recordings violate certain protections that are afforded by Title III of the Omnibus Crime Control and Safe Streets Act. (Crowford, 1993, para.3)
Moreover, as any surreptitious recording of a conversation can occur when one party to the conversation (or the recording party) gives consent to the recordation, but the other party is not aware of the recording, the attorney may even involve the use of illegal elements of deceit in relation to the other party. It is wrong for any attorney to use surreptitious recordings. (Surreptitious recordings of conversation and statement)
In our case, two subjects in the car had a conversation which was recorded without their consent and without their defense counsel. According to the Sixth Amendment to the Constitution of the United States, which states that “in all criminal prosecutions, the accused shall have the Assistance of Counsel for his defense”. Moreover, the U.S. Supreme Court has interpreted the meaning of the Sixth Amendment as guaranteeing not just the right to have a defense counsel but, what is more important, the right to the effective and prompt assistance of the defense counsel. It means that the attorney must create a relationship with the accused some time prior to trial and the government has no right to interfere with their relationship. In our case, the subjects did not have their defense counsel for protection. (Merkel, 2011, para.5)
In conclusion, it is necessary to say that any surreptitious audio recordings are considered to be illegal evidence in the court in case they are made without the consent of all parties. This fact is related to 12 states, including Nevada, California, Michigan, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington.2. However, in other 38 states surreptitious recordings are allowed.
Crowford, K.A. (1993) Surreptitious recording of suspects’ conversations. The FBI Law Enforcement Bulletin. September 1, 1993. Retrieved
Merkel, S. (2011) Trials & Tribulations: Surreptitious recording and its implications. The Daily Record. November 30, 2011. Retrieved from:<http://nydailyrecord.com/blog/2011/11/30/trials-tribulations-surreptitious-recording-and-its-implications/>
Surreptitious Recording of Conversations or Statements. Colorado Bar Association. July 19, 2003. Retrieved from:<http://www.cobar.org/index.cfm/ID/386/subID/3809/Ethics-Opinion-112:-Surreptitious-Recording-of-Conversations-or-Statements,-07/19/03/>