When can recordings be used as evidence?
Facing criminal charges can be an extremely stressful experience. The prosecution will try to build the strongest possible case against you, using any evidence available.
In the era of ubiquitous smartphones and other personal devices, almost everyone has the ability to record any event in an instant. But are such recordings always admissible in court? What matters in such cases is the type of recording—and the circumstances behind its creation.
Audio recordings
Someone may have recorded the audio of an important event—such as a phone call or meeting. But unless you consented to the recording, it may have been illegal for that to happen. Florida is one of the few “two-party consent” states—which means that everyone involved in an audio recording must consent to being recorded.
This rule doesn’t apply in public places, where there is no reasonable expectation for privacy. But if the conversation occurred in private, an audio recording might not be admissible without your explicit permission.
Video recordings
Things get more complicated when the visual element is involved, since the two-party consent rule does not apply to video. However, there are other factors that could make a video inadmissible.
In the age of Photoshop and increasingly realistic computer-generated imagery, there are numerous ways to manipulate a picture or video. If the defense can prove that some part of the recording is fake or altered in some way, it could be inadmissible.
A video could also be deemed inadmissible if it doesn’t fairly represent the entire incident. For example, if a video showed that you shot someone, but due to the angle, it doesn’t show whether you were acting in self-defense, it might not be usable.
You could be unaware that there was a recording of an incident relevant to your case. You may feel like you don’t have control over how it gets used against you in court. However, an experienced defense attorney can leverage the law to your advantage, and work to get such evidence thrown out.