Are recorded conversations admissible in court? (USA)

by Jose Luis Perez May 13, 2020
Are recorded conversations admissible in court? (USA)

Call recording is often used for the resolution of disputes, but in more serious cases companies or individuals may want to use recorded conversations in court as an evidence for their claims.

However, whether call recordings are admissible or not does not have an easy answer: it will depend on the country, the parties’ consent, the reliability of the recording, and a few other factors that we will discuss in the next article.

Legal ≠ Admissible

Before we move on, it is important to specify that legality does not equal admission. Put simply, only because a call has been recorded legally doesn’t always mean that it will be admissible in court. In addition, it also needs to be predicate: in other words, you will need to provide evidence that the recorded conversation is reliable and valid. Although this rules may vary by state and country, in most cases you should be able to:

  1. Prove that the voice on the tape actually belongs to the person you are claiming to be.
  2. Show that the software or hardware you used is reliable for making accurate recordings;
  3. Prove that the tape is true and accurate representation of the interaction, and no context of importance is lost.
  4. Authenticate that the recording has not been altered or modified.

Additionally, there is the Hearsay issue: in some cases, using someone’s prior, out-of-course statements in a recording might become problematic in the court, and could make the recording non-admissible.

Recorded conversations in the USA

The federal court and every state have established specific rules on the types of evidence that are admissible, and the authentication that is required to prove their reliability. As a general rule, evidence that has been obtained illegally will not be accepted in court.

But when exactly is considered that evidence was obtained illegally? The answer may vary between states, but here are some of the most common law applications:

One-party consent

When the law applies the one-party consent rule, it means that the consent of only one of the participants in the conversation is enough to make recorded conversations legal. However, it is important to put an emphasis on the word participant: if you are not a part of this conversation, the recording is generally considered illegal.

For example, if you are talking to someone and one of you decides to record (aka give his consent), even if the other party is unaware that the call is being recorded, it is legal under the one-party consent rule. However, if a third person is recording the conversation without participating in it, it will be considered illegal.

In the USA, the federal law and some states including New York, Louisiana and Texas are bound under the one-party consent.

Two-party consent

This type of consent, also known as all-party consent, accepts that the recording is legal only of all parties are aware that the call is being recorded, and have agreed with it.

In this case, if someone secretly recorded a conversation without informing you about his intentions and obtaining your consent, this won’t be legal in two-party consent states.

States like California, Illinois, Florida, Pennsylvania, Connecticut, Michigan and Montana require the consent of all parties of the conversation before taping is allowed. Otherwise, it will be illegal, and not admissible in court.

How can Cloud Worldwide Services help?

Our flagship call recording solution Recordia is designed to ensure that companies that record calls legally can also make recorded conversations admissible in court. Here is how:

  1. Digital Thread: we generate a hash to ensure the integrity and authenticity of the recordings. If a recording is downloaded from our cloud platform, we are capable of comparing it with the original file to detect alterations or modifications.
  2. Security and Reliability: all conversations taped with Recordia are encrypted with the AES-256 algorithm, and protected through security certificates. We comply with GDPR, MiFID II, and the Dodd-Frank Act, which makes us a reliable service for safe and accurate recordings.
  3. Voice Traceability: because Recordia integrates with telco providers, allows logging traceability, and detects any possible recording alterations, we reduce the risk for falsifying or impersonating voices for malicious intentions.
  4. Accuracy and Data Consistency: with a data consistency of 99.99999%, we ensure that interactions are recorded without lost elements that might distort the context of the conversation.
  5. Data Traceability: our logging and auditing system allows operators to know with precision who accessed what, when and from which device, thus allowing full access traceability, as Data Protection Laws require.
  6. Data Storage: with Recordia, you can store conversations for 5+ years to comply with security regulations such as MiFID II.

NOTE: Cloud Worldwide Services is not a legal firm and this article is not intended to provide legal advice. To ensure proper compliance in your region, please consult a lawyer.

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