Tape recorded evidence is very powerful in trial because it gives the jury insight into the events of the controversy as they took place, as if these events had happened right in front of the jury. However, how a tape recording is made will determine whether it is powerful evidence that is admissible in trial, or effectively useless as a violation of Michigan’s eavesdropping statute (potentially subjecting the maker of the recording to civil and possibly criminal penalties).
Michigan law makes it criminal to use a device to eavesdrop on a private conversation “without the consent of all parties thereto”. However, Michigan courts have interpreted the statute to allow “participant monitoring”. Participant monitoring allows a “participant” in a private conversation to record and utilize conversations in which he participates. However, unlike federal law which allows “consensual monitoring” or a recording by a third party with the consent of one of the participants, Michigan does not have a similar provision. Thus, in Michigan, a recording of a private conversation by a third party, even with the consent of one of the participants, would likely constitute unlawful eavesdropping.
Earlier this year, the Michigan Court of Appeals clarified who is a participant in a private conversation in Kasper v. Ruprecht. In that case, the plaintiff alleged that the defendant was liable for a violation of Michigan’s eavesdropping statute where he had made a recording of her. The defendant was part of a group of minors that was at the plaintiff’s house with the plaintiff’s daughter. When the plaintiff arrived home and found the group, she began conversing with the group. At least one person in the group thought that the plaintiff was drunk and the defendant recorded her actions and statements on his phone because he thought she was acting “hilariously”. After one of the people at plaintiff’s home was involved in an accident leaving the house, defendant released the recording to the police. Plaintiff then brought a claim against defendant for eavesdropping.
The finding of this case essentially hinged on whether or not the defendant was a “participant” in the conversation he was recording. The Court, finding that the defendant “was part of this colloquy” held that he could not be in violation of eavesdropping and granted him summary disposition.
The Court’s decision in Kasper v. Ruprecht may give a little more leeway for the tape recording of conversations for evidence in trial by seemingly expanding the group of people that qualify as “participants” in conversation. However, the penalties for violating Michigan’s eavesdropping statute can be hefty and those looking to record conversations as evidence for trial should make sure to conform these recordings to the law.
If your business is facing potential litigation or you have any questions, please contact the attorneys at Demorest Law Firm.
