Clients in high conflict divorces sometimes record their arguments and interaction with their spouse in order to protect themselves from false allegations; to try to prove that the other person is making threats or harassing them, or to try to secretly obtain an admission on tape. Is it "legal" to do so? The general answer in New York is that you may record only those conversations in which you are a participant. You may not legally record conversations where your presence is unknown as that is considered wiretapping, both a New York State and Federal crime punishable by possible imprisonment.
In New York, therefore, one spouse may legally have a recording device in their pocket when arguing with their spouse. A spouse may not, however, record third party phone calls to which he or she is not a participant. Again, to do so would be to engage in illegal wiretapping. How may these tape recordings be admitted into evidence in the divorce action? The recent Court of Appeals case of Grucci v Grucci, --- N.E.2d ----, 2012 WL 5845008 (N.Y.), 2012 N.Y. Slip Op. 07856 explains that authentication of the tape is critical.
Grucci involved an action for divorce.A few months after the commencement of the action, the husband was charged with harassing the wife, and an order of protection was issued directing him to stay away from her. Subsequently, the husband was accused of violating the order. The husband was indicted by a grand jury charging the husband with two counts of first-degree criminal contempt. The husband was acquitted after a bench trial. The husband then brought a civil action against the wife to recover damages for malicious prosecution.
At trial, the husband sought to play for the jury an audiotape of a telephone conversation in which the wife purportedly made clear to her husband, at some point after she went to the police, that she was not afraid of her husband. The wife’s attorney objected to the audiotape's admission on the grounds it was unreliable, "pieced together from a number of things" and "unintelligible"; that no chain of custody had been established; and generally that "no foundation [had been] laid for it at [that] point." The Court of Appeals affirmed. In a memorandum decision, the Court of Appeals observed that while a party to a taped conversation may identify the speakers, "identity and authenticity are separate facets of the required foundation, both of which must be established" ( People v. Ely, 68 N.Y.2d 520, 528  ).
The Court of Appeals stated: "The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered" (People v Ely, supra, at 522). In the Grucci case, there was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody during the nearly nine years that elapsed between when the conversation allegedly took place and the time of the trial.