Have you ever said something that you regretted to your spouse in the heat of the moment? I think any of us who are married can say safely that we have. However, whether or not those comments can come back to haunt you in a divorce is an entirely different subject altogether. The divorce case can relate to many other areas of your life and are often not the most glamorous or favorable for you and your family. However, the reality of the situation is that These situations may differ from what you're alive generally lived. However, even small circumstances can get blown out of proportion when it comes to a divorce case. As the old saying goes: all is fair in love and war period; unfortunately, divorce often means both love and war simultaneously.
The tricky part about situations like this is that the more hatred there is between you and your spouse, the greater likelihood that small fights over minor issues can exacerbate pre-existing conditions that are already impacting your family. When these difficult conversations and arguments are either taped, recorded, or other eyes reduced to digital evidence, you have a situation where that evidence may be used against you to impact the degree to which Community property is divided as well as this sort of custody and visitation rights you have about your children.
But I would like to look for in today's blog post is how you could go from an angry discussion with your spouse to an argument, to a recorded conversation, and then onto whether or not those conversations will ultimately come back to haunt you in a courtroom. This is a critical discussion for us to consider. There is somewhat of a divide between how evidence is easily captured these days using technology and whether or not that evidence could make it into your child custody or divorce case. Whether you or your spouse attempting to capture evidence of this sort, the other person knowing then you should read on and pay close attention to today's blog post.
We want to look at whether or not evidence obtained illegally, such as covertly taped telephone conversations, hacked emails, and things of this nature, can come into court and be used as evidence in a divorce or child custody case in Texas. Frequently we see evidence like this fall into two categories: the evidence could be conversations between you and your spouse and then conversations between one of you and an unrelated party. I'd bite to examine if the law treats these recorded conversations as different in terms of using this evidence in court.
When we are talking about conversations between you and a third party, we must discuss whether or not either of you consented to have the conversation recorded. The same goes for hacked emails between you and a person who is not your spouse. Fortunately for us, these are subjects that have had quite a bit written about them and have also gone through the courts, so there is some case law for us to reflect on, as well. While just like in any other area of the law, the law in this area is ever-evolving. However, I would like to examine where the law is right now regarding this subject.
What does the law in Texas say about their legally obtained evidence being used in court?
The state of Texas has laws on the books which prevent you and your spouse from hacking each other's email and intercepting phone calls. The penalties for doing so are frequently in the upwards of multiple thousands of dollars and attorneys fees. The exciting part of this discussion is that while the statutes on the books tell us what sort of conduct is not covered as legal, it does not tell us whether or not your spouse would be on the hook for violating the law if they were to record your conversations secretly. That is where case law and the judge-made law come into play.
As we all would imagine, the case law on taped telephone conversations goes back much further than case law odd hacking email, for example. The Texas Supreme Court determined nearly 45 years ago that if you are engaged in a conversation with another person, then either of you may legally record that conversation without the other person's knowledge or permission. This is also the federal law when it comes to recorded phone calls. Bear this in mind when do you plan on engaging in behavior like this. Even if you do not want your spouse nor permit them to record the conversation, know in advance that they are legally able to do so. So, choose your words wisely and perhaps even operate under the assumption that your spouse may be recording your conversation.
What if we are talking about your spouse? Let's assume a situation where your spouse believed that you were engaging in an extramarital affair. Subsequently, your husband then installed a device on your cell phone to record all conversations you had been having. The day after this recording technology was installed on your phone, you called your boyfriend and began discussing aspects of your relationship. Again, you had no idea that your husband had been engaging in this type of behavior.
Your husband then used the recording as a type of blackmail against you to see if he would be willing to bypass a contested divorce rather than give him a free and easy divorce on an uncontested basis. Texas court would likely determine that it is not necessarily illegal for your spouse to tape your conversations in the home. Bear in mind that this has been the historical president in Texas about the home phone. How your specific judge would consider your circumstances gave cell phones, there's not quite as clear. A judge would likely not feel all that comfortable determining Each of you can engage in wiretapping to that extent of a family member. Courts do not believe that family members require the same degree of privacy as would be afforded to a stranger.
For many people, this can come as a surprise. Most people would expect that they would have a certain degree of privacy even when it comes to conversations in the family at home. However, just like a mother or father may feel within their rights to, he's dropped on a phone call of their teenage child; apparently, appellate court judges in Texas believe that spouses may also record conversations on telephones of their significant other.
I believe and understand that the critical element that exempts spousal wiretapping is that as long as one party knows the recording is being made, you are not violating the law. If your spouse wishes to record you without your knowledge, that does not render their tape recording invalid as far as being admissible into court. On the other hand, if your spouse wants a third party to tape your conversation or if your spouse intercepts a conversation between you and a third party, then it was likely that that conversation would not be admissible in a courtroom circumstance.
When are secretly recorded conversations admissible?
Suppose you have secretly recorded a conversation between your spouse and you or your spouse and another person. In that case, you should be asking yourself when these recordings become eligible to be included within the record of your case. Having these recordings collecting dust on your bookshelf or within a file in your computer doesn't do much good for you. Instead, we need to determine to what extent they can do you some interest in the sense of being admissible into a record.
Let's suppose that you have three taped conversations between your spouse and another person. You were not a party to any of these conversations, and your wife did not know or give consent to being recorded. Bear in mind that the general rule in Texas is that all relevant evidence is admissible except otherwise provided by statute. This can be found in the Texas rules of civil evidence #402. Therefore, we have a presumption that your recordings of your spouse should be deemed admissible unless an exception to this assumption exists. Basically, in a divorce circumstance, your spouse would have to argue that a statute in the books compels their exclusion from the record.
In Texas, the civil practice and remedies code tells us that if your spouse asked the court for an injunction prohibiting their inclusion into the record, then a judge must consider their request. There are no laws on the books currently that specifically tells a court to exclude illegally obtained communications. Most courts have interpreted this law to include the type of conversations you recorded against your spouse and our hypothetical example. This is because the tapes were illegally recorded under the state of Texas law.
However, another appellate court decision from Texas that is going on 25 years old allowed taped conversations to be deemed admissible. These conversations were held between a police officer and a defendant in a criminal case. The police officer taped the conversation during an investigation related to a drug offense. The court found that the officer was acting under the law and was a party to the discussion. In this case, the defendant had no expectation of privacy that was reasonable under the circumstances. Again, we see that nonconsensual interception of telephone calls is prohibited if at least one party to the conversation does not know the interception nor consent to it being done.
What do we know about the admissibility of intercepted cell phone conversations?
All the above is well and good for us to discuss, but we haven't heard anything about intercepting cell phone calls and then used as evidence in a trial or hearing for a family court matter. It seems like the old schoolhouse phone could not be wiretapped so quickly and then used as evidence in a civil case. However, what is the expectation of privacy when it comes to cell phones? Can you be expected to have privacy when engaging in a phone call outside of your home and in public?
Case law since federal and state statutes had been enacted regarding the recording of phone calls has dealt with landlines rather than cell phones. There are relatively few decisions out there that deal with intercepting cell phone conversations at the appellate level of courts. This does not mean that you should assume that you are in the clear when it comes to blocking and then utilizing cell phone conversations between your spouse and another person. However, you should check with your attorney before relying upon evidence that you obtained Using a recorded phone line or something along these lines.
How is the issue of Emails treated in this regard?
As with many areas of our lives, technology tends to move faster than the law. While we have access to new technologies and new uses for our computers, cell phones, and other digital products, the law tends not to have any rulings, statutes, or case law for some time after we begin using this new technology. With that said, emails present issues in terms of using them in a trial for evidence. It is illegal to intercept email while being sent or after receipt by a person on the federal level. The bottom line question that we have to ask ourselves regarding a family law issue regarding email is whether a person using a laptop or personal computer has a reasonable expectation of privacy that the communication they send will be protected from you or any other person?
As we talked about earlier in this blog and many other blogs, if you post information to a chatroom, Facebook group, or any other social media website, any confidentiality or expectation of privacy argument goes out the window. On the other hand, should we treat an email like he would a letter to a friend or family member during the days of snail mail? We can also consider email from the perspective of using phone lines or fiber optic cables, much like a cell phone or man line. Did the exact expectations of privacy attached to emails as we have seen with landline conversations and possibly with cell phone use?
There are not many states of Texas cases that deal in subjects like this. We can look to federal statutes and federal case law on the subject, although whether or not the Texas court would choose to follow national precedent is another matter altogether. It would seem that an expectation of privacy does not protect emails sent or received in general. This is especially true if those emails are printed out from a computer which a person can read by sight or if those printouts accurately reflect the email. If an email is sent as a regular matter of business, it may be treated as having more expectations of privacy. On the other hand, Emails that are sent over specific issues may not have the same expectation.
Closing thoughts on privacy, technology, and admissibility
Like with many forms of technology, I would say that technology gives it and it takes it away. We take advantage of the ease of communication and the benefits of simplicity and convenience. However, we also have to consider how technology hinders our ability to communicate privately and securely with one another. This is on top of concerns over the admissibility of evidence and the potential hearing or trial in a family law matter.
Probably the most helpful advice would be that you should not attempt to utilize information like this obtained by hacking or other means when in doubt. Above that, it will be wise not even to try to do so. It can violate trust in the other person and potentially cause problems within the case as well. As with anything else in your case, you should speak to your attorney about this type of evidence and how digital proof can impact our case.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are an excellent way for you to learn about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.