By Jacqueline Leary
We live in a world that is captivated by technology. It is common for people to video tape accidents as well as normal daily activities. It is not surprising that exhibits at a final divorce hearing include Instagram, Facebook, and other social media messages between the parties, their children, and other individuals.
Unfortunately, the expansion of modern technology has made it easier for anyone to intercept telephonic or electronic communications of the other party. There is no “one-party” consent exception in New Hampshire. What do you do when your client informs you that they would like to record the telephone conversation between the other party and the minor child? How do we prevent this from occurring? How do you respond if it already happened?
First, if your client is telling you that they would like to record the other party, it is likely that they do not understand their actions could be unlawful. It is important to remind your client that it is against the law to record a telephonic conversation or disclose its contents without the consent of all parties. It is also unlawful to record in-person conversations of individuals who have a reasonable expectation that their communications are not being recorded, without first obtaining their consent. Intentional violations could result in a class B felony or misdemeanor charge, as well as monetary damages. You should also explain that the recorded conversations most likely will be excluded from evidence at the divorce trial.
New Hampshire’s Wiretapping and Eavesdropping statute, RSA 570-A, protects the individual’s right to privacy to a greater degree than many other states and the federal law because unless all parties consent to the interception (said differently, all parties are aware that their conversation is being recorded), the person who records the conversation is committing a crime.
Second, the above conversation can be prevented if you have a proactive conversation with your client during the initial consultation or shortly thereafter. While you are explaining the wiretapping statute, you should also discuss “hidden cameras.” Pursuant to New Hampshire’s violation of privacy statute, RSA 644:9, it is a misdemeanor to install or use any device to photograph or record images or sounds in a place where there is a reasonable expectation of privacy. In addition to potential criminal charges, the person installing the hidden cameras could be sued civilly by their spouse. The spouse may also sue for the common law tort of invasion of privacy.
Third, if the recording already happened, one should determine if a violation of the law occurred. Was the recording intentional? Was there an expectation to privacy? Did the recording come from the family camera installed by the other party? You should advise your client of the law, instruct your client not to record any future conversations, explain the potential criminal consequences, discuss the effect their actions had on the case, and alert your client of their right to protect oneself from self-incrimination.
The knowledge of the illegal recording by the party being recorded may be brought up in written discovery questions or at trial. When responding to such questions, it is important to remember that the trier of fact may draw an adverse inference in a civil action against a party who invokes the Fifth Amendment Privilege.
There are lawful ways to obtain information regarding your spouse’s behavior that may lead to a fault ground through the discovery process. Before you hit the “record” button, you should contact an attorney.