Why you Should Record Your Conversations

If you are in a one-party recording state, I would strongly recommend that you document everything possible in your case, as you go forward, with audio tape. When I am working with a client, I ask them to record me. I will say a lot and I want there to be no confusion later about what was said. Please understand, the advice I am giving here has nothing to do with being sneaky. It is simply a means of maintaining an accurate accounting of whatever was said, but it is very important that you understand the laws governing the recording of conversations in various states. You will find that you are either in a one-party or a two-party state:
- One-Party State - You can record conversations to which "you" are a party without the consent of others who may be involved in that conversation. If you are talking to 3 other persons and you have a recorder hidden in your pocket, even if the others have no idea you are recording, you are not violating any law because "you" are a party to that conversation.
- Two-Party State - Everyone must agree to a recording. As in the above example, say you are talking to 3 other persons. You have a recorder in your pocket and they have no knowledge you are recording the conversation. You are "breaking" the law becasue "everyone" that is a party to a conversation must have knowledge that the conversation is being recorded and everyone must agree to the recording.
Most states are one-party recording states, again meaning that you are not in violation of the law when you secretly record a conversation to which "you" are a party to. That does not mean you can record "other" people's conversations when you are "not" a party to them. That would be considered invasion of privacy and could easily result in a civil and/or a criminal action against you.
As I said, this advise is not intended to imply that you should be a super spy, or that you should ever break the law. Recording a conversation is more or less a safety net. If you are talking to someone and they tell you something, the hope is that they will also say the same thing at a later time and, if that happens, the tape served absolutely no purpose other than to possibly refresh you as to the entire conversation. If, however, someone says something important and later changes what they said, a tape is possibly the only defense you may have.
When a person finds themselves falsely accused of child abuse, I strongly recommend that they record everything possible specific to their case. To some, going to all the trouble to record may sound unnecessary and rather stupid. That attitude changes quickly when they discover that something said was very beneficial to them, but later that statement changed and they had no proof of the initial comments.
There have been occasions where I recommended that clients record all conversations and they refused to do it, either because it was a pain to keep up with, or because they did not think that it was important. In a prior case, the accusing child called her friend, the daughter of the man she was accusing, and told her that she made a terrible mistake and that her father had never done anything to her. The family was "thrilled" because the case was over. What they did not understand or consider was the pressure that would be exerted on the accusing child by the prosecutor and law enforcement and when it was, she not only continued with her allegation, she denied ever telling the daughter of the accused she had lied. Since there was "no" recording, a conversation of that importance simply went by the way-side. In that case, a short recording of that conversation could have stopped a lengthy, expensive and very risky criminal trial. The point here is, you have no idea what could come up or could be said and who may say something so again, I would strongly recommend recording everything.
If you do think about recording, keep in mind that no matter what state you are in, as I said above, you have no right to record "other" person's conversations to which you are not a party. As I already stated, that is invasion of privacy and carries stiff criminal and civil liability. As an example, when you are in a room, having a conversation with two other people and you have a recorder hidden in something you are carrying, like a briefcase, you are not breaking the law, however, if you leave that room and allow the conversation between the other parties to be recorded, you are guilty of invasion of privacy because "you" are "not" a party to the conversation.
The main question then would be what kind of recorder should you use, digital or tape? I highly recommend tape. Digital has a much longer recording time, but you have to move your sound files to a computer and therein lies the risk of an argument from the other side that you "altered" the recordings. If your recordings are simply on a tape, that argument would not apply since you were not required to "adjust" the conversation in any manner.
Now, micro cassette tapes generally run about 60 minutes per side, so digital does have an advantage in that they can record for hours at a time. Usually, if I have a case where a father has been falsely accused of abuse and the Court has ordered visitations between him and his children to be supervised, I want him to record the entire visit. Here a digital recorder would be the best choice. If my client has his visits with his children audio recorded and the audio clearly shows the kids running to and hugging him, it will be hard later for his ex-wife to come back and claim the "visits" with their father are "scaring them."
If you do record conversations to which you are a party, regardless of whether or not they are in person or on the telephone, there are certain guidelines you need to know and follow.
- If using a tape recorder, use one tape for one conversation. Many people attempt to put as many conversations as possible onto a tape. Very unwise. If the tape ever has to be used as evidence, the other side is entitled to the entire tape and you do not want other conversations made available to them, so one conversation per tape.
- When you have a tape completed, it is a good idea to "break" the small "flange" on the side of the tape so it cannot be recorded over. Take that tape and put it into an envelope and seal it. Write a short description on the envelope, such as the date of the recording, the parties involved and a very short synopsis of the conversation. In the end, you may have many tapes and it is vital to be able to retrieve the one you may need without having to "listen" to the tapes to find the one you want.
- Once the envelope is sealed, "lock" it away somewhere so that it would not be possible for anyone else to access it. The tape must "maintain" a proper "chain" of evidence to be acceptable. You recorded the tape, you removed it from the recorder, you sealed the tape in a envelope, you locked it away and you brought it to court. In all that time, you have had absolute possession of the tape and it was not possible for any third party to access it or alter it in any manner. Unless that is strictly followed, you run the risk of the other side being successful in keeping the tape out completely.
Again, assure that there is no recording of "any" parties involved in a conversation that "you" are not a party to, otherwise, you open the door quickly to civil and criminal liability for yourself. Also, keep in mind that video recorders are held in the same light. You may be able to "video" other parties, without their knowledge, but "not" audio. The issue is, "the expectation of privacy." You cannot invade that or again, "you" could be subjected to civil and criminal liability and obviously, no Court would accept your tape as evidence.
As I have already said, making a recording amounts to nothing more than establishing a true record of exactly what was said. If the person you are talking with says the same thing months later that they said when the recording was made, the tape served no purpose, however, if what they said later was not consistent with what they said at the time you recorded them, the tape serves as rebuttal. I cannot tell you how many times in cases over the years I have had people approach my client with, "Okay, I am going to tell you something, but you did not get this from me and if you say I did, I will deny it."
Never, under any circumstance, let anyone know that you are video or audio recording. Many people think it is to their advantage to "let" other parties know what they are doing in an effort to "keep" them straight. That does not work. Basically, you get nothing when the other party is aware that they are being recorded. They will refuse to say things they may well say if they are unaware of the recorder and, in the end, you wind up with far less than if it had been done properly. I have seen so many individuals involved in these cases "thrill' themselves by "letting" the person they are talking with "know" that they are taping the conversation. As an example, an accused walks into an interview with social services and slams a recorder down on a desk or table. Evidently, it makes them feel like they are in control, but it accomplishes nothing and should not be done. Build the case silently and in secret.
When audio recording, Radio Shack has a "handset" recording device for $14.95, that provides excellent quality. In addition, they normally have a "suction cup" recording device that has been known to work very effectively on cellular telephones as well. They also have a device that works with several cell phones.
If you are recording audio conversations with anyone, in person and not on the telephone, make sure that you thoroughly test your equipment first. In some cases, when a tape reaches the end, the recorder will give off a loud tone sound, which could result in extreme embarrassment. In addition, test the recorder for it's ability to pick up conversations properly. I have seen "excellent" interviews conducted where the recorder was in a pocket in such a manner that it either did not pick up the parties or the sound of the microphone brushing against material was the only thing that was heard. Simply put, test before you attempt. I have actually had some clients who taped a recorder to their leg and ran a power microphone up through their clothes and down their shirt sleeve. The quality was perfect. Use your imagination.
In addition to recording, assure that you make an accurate and complete copy of any and all correspondence that you send to anyone involving your case and, when mailing items, it is always best to send them certified so you have a "signed" return for your certified mail and then there is no confusion as to what other parties claim they did or did not receive.
If email is used, print and save them for future use.