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Marital & Family law Section Chair : AndrewD . Reder , B . C . S . — SessumsBlack , P . A . there ’ snoshortageof smartphoneappsthat makerecordingphonecalls almostaseasyasnot recordingthem .
You are a criminal . Probably .
That is because , while the future failed to deliver flying cars or umbrellas that keep our legs dry , it did give us pocket-sized devices that have turned many of us into unremorseful ( and unknowing ) criminals . How ? Because Florida remains a two-party consent state when it comes to recording conversations .
There ’ s no shortage of smartphone apps that make recording phone calls almost as easy as not recording them . But Florida ’ s wiretapping statute is broad and unforgiving , prohibiting — among other things — any person from recording a conversation with any other person without the latter party ’ s consent . 1 While the statute includes exceptions , they almost never apply when one party secretly records a private call without court or law enforcement authorization .
So , considering how easy it is to record calls , this author presumes that a substantial portion of those reading this article have , at some time , violated Florida law .
This issue is particularly salient in family law disputes , where clients often record their estranged partners hoping to capture damning
evidence of how awful they truly are . Whatever the intent , secretly recording another person is a crime , and , at the very least , the resulting recording cannot be introduced into evidence . 2 This is true even when one parent secretly records a conversation with her own child . Simply put , most secret recordings are illegal , and all illegal recordings are inadmissible . 3
Knowing this , family law attorneys should counsel their clients early in the litigation process against making secret recordings . Because family law clients almost always follow their attorney ’ s advice , that should do the trick in most cases . But on the off chance that it doesn ’ t , family law attorneys must remain vigilant and guard against the inadvertent disclosure of evidence that could have potential criminal ramifications . While attorneys cannot counsel clients to destroy any secret recordings , we can — and must — advise clients of their rights against self-incrimination should a risk of disclosure arise during the course of litigation .
Ultimately , we must recognize that it is becoming increasingly common for people to secretly record telephone conversations without any idea that doing so might be problematic . It is therefore important to remind our clients that even though wiretapping is easy and often hilarious , it remains a crime in this state . And most importantly , the last thing we need as family law practitioners is for our clients to exhaust their precious , limited resources paying a criminal defense attorney . n
1
§ 934.03 ( 1 )( b ), Fla . Stat . ( 2023 ); see State v . Walls , 356 So . 2d 294 , 296 ( Fla . 1978 ) ( observing that statute prohibits recording conversations without consent from all parties )
2
§ 934.06 , Fla . Stat .
3
B 1281 and SB 2024 ) would create exceptions when the recording party reasonably believes that the recording will capture evidence of the other party ’ s intent to physically or sexually abuse a child or commit an act of domestic violence .
Author : Mark Baseman – Felix , Felix & Baseman
Join the Marital & Family Law Section at hillsbar . com .
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