By: Steven E. Maalouf
It is not uncommon for a client to walk into their attorney’s office holding what they believe to be key evidence against their soon to be ex-spouse. The client explains that they have secretly recorded their spouse and that the recording highlights their ex-spouse’s abusive behavior, their threats, or even their dissipation of assets. On other occasions, the client has recorded their own children in the hopes it can be used as evidence in a difficult custody battle. What the client does not realize, however, is that the same recording they think will help them win the case may also be the one that leads to criminal ramifications.
In Massachusetts, M.G.L.A. c. 272 § 99 makes it a crime to “willfully commit[ ] an interception ... of any wire or oral communication” and prohibits the dissemination of any such recorded interceptions, which would include use at trial. The term “interception” is defined as “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” 
Accordingly, it is illegal for a client to secretly record their spouse or any other party even if it’s just with their cell phone. So what exactly does secret mean? The Supreme Judicial Court (SJC) has held that a recording is “secret” unless the subject has “actual knowledge” of the fact of recording.  “Actual knowledge” can be proven by “objective manifestations of knowledge.” As such, “actual knowledge” does not require that there be any explicit acknowledgment of or reference to the fact of the recording.  (“[T]he person recording the conversation [need not] confirm the [subject's] apparent awareness by acknowledging the fact of the intercepting device.”).  In plain language, a person recording does not necessarily have to explicitly receive consent to record. One of the biggest factors in determining whether a recording was secret is whether or not the recording device was used in plain sight. In Gilke, the Court stated that “…the use in plain view of a device commonly known to record audio is, on its own, sufficient evidence from which to infer the subjects' actual knowledge of the recording.” 
Imagine, for example, that the client and their spouse are in the midst of an argument. The client, trying to gather evidence, reaches their hand in their pocket and hits record on their cell phone, unbeknownst to their spouse. The phone records their spouse admitting that he is only seeking equal parenting time so that his child support number will be lower. The client now has evidence to use in court, right? In fact, it is likely that the client has violated the M.G.L.A. c. 272 § 99 and may be looking at criminal charges. Had the client gotten consent or even held the phone out in plain sight, they may have avoided this violation. That said, each case is fact specific and requires its own analysis.
Although recording your spouse or children may seem like a good way to gather evidence for your case, the reality is that clients must be extremely cautious when doing so, or risk criminal repercussions. In most circumstances, it is unwise to record another person without their explicit consent. Even with consent, there are many judges who would look negatively upon a client who records another, legal or not. Clients should think twice before pressing the record button.
Please contact the Family Law Group if you have any questions about this client alert.
 Id. § 99(B)(4).
 See Commonwealth v. Jackson, 370 Mass. 502, 349 (1976).
 Id. at 340
 Gilk v. Cunniffe 655 F.3d 78 (2011).
 Id. at 750 N.E.2d at 971.