Recording Telephone Conversations

During a recent oral argument, Judge Wallach asked counsel about a recording that had been made of a telephone call  without the other side’s consent. Apparently, the telephone call was presented as evidence at trial.  As you may know, states take different positions on whether notice must be given to the other party of a telephone conversation when a recording is being made. Thirty-eight states are single-party-consent states, whereas twelve states are two-party-consent states.  Judge Wallach emphasized that regardless of whether a state is a lenient single-party-consent state, that state’s bar opinions might take a stronger position.  In such an instance, the state bar opinions trump the criminal statute for purposes of controlling conduct of lawyers within the state.

Here’s a link to a presentation on Colorado law that illustrates the issue in more detail:  [Link].

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