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Joey81

Secret Recording and Disclosure

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NH State Law has a statute about secret recording or disclosing recording without consent, but I'm confused about this. During a FaceTime call with my ex-wife and daughter (which she was aware I was recording) she stepped out of the frame with her phone and began recording secretly. She then introduced this recording in to court in Vermont claiming it was threatening. She claimed that "knowing him for over a decade I know that tone of voice is threatening" and the judge seems to have bought BS.

 

So here's my confusion, is disclosure without consent against the law in NH or am I reading that wrong? Does disclosure include sharing it with your attorney (as I shared it with my attorney as well) or is introducing it in to court without my consent still legal? Is it sufficient that my attorney didn't object, thus consent is implied?

 

 

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It seems consent to record the conversation was already in place. Whether just one of you hit record, or you both did is irrelevant. You knew there was a record of whatever was being said and had no expectation of privacy.

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14 hours ago, Joey81 said:

So here's my confusion, is disclosure without consent against the law in NH or am I reading that wrong?

 

Reading what wrong?

 

Section 570-A:2(I)(c) of the New Hampshire statutes makes it a felony to "wilfully disclose[], or endeavor[] to disclose, to any other person the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph."

 

In order for a violation to occur, there must be a disclosure (or attempted disclosure) of the contents of a telecommunication or oral communication, where such communication was intercepted in violation of section 570-A:2, and where the person making the disclosure knew or had reason to know of the violation.

 

In the situation you described, there certainly was a disclosure of a communication, but I can't conclude whether the other elements of the crime were satisfied.  Was the communication intercepted "in violation of" section 570-A:2?  The key is consent, and you told us that you were already recording the communication with your ex-wife's knowledge.  Logic would seem to dictate that, since you were recording it (and presumably will take the position that your recording was not illegally made), you had constructively consented to any other party also recording it.  One would have to research case law construing this statute to know if my "logical" conclusion is actually consistent with the law.

 

 

14 hours ago, Joey81 said:

Does disclosure include sharing it with your attorney (as I shared it with my attorney as well) or is introducing it in to court without my consent still legal?

 

The statutory language covers disclosure "to any other person."  Thus, if she committed a crime, you committed the same crime.  While the statute does not expressly say so, I strongly suspect that, if the recording is made or obtained legally, it will not be considered illegal for a person who legally made or obtained a recording to disclose it to his/her attorney for the purpose of legal proceedings.  Since you have an attorney, this is obviously something you should discuss with him/her.

 

 

14 hours ago, Joey81 said:

Is it sufficient that my attorney didn't object, thus consent is implied?

 

If your attorney failed to object in an appropriate and timely manner, there's nothing to be done about this now.  Again, I suggest you discuss your concerns with your attorney.

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