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Victim's Recording of Defendant Statements Not Admissible in Fla.

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By Mark Wilson, Esq. on December 15, 2014 3:49 PM

In Florida, it may be harder than ever to "catch a predator" in Florida. (See what I did there?) Last week, the Florida Supreme Court ruled that surreptitiously recorded statements of child sexual abuse couldn't be admitted at trial.

Richard McDade, the petitioner in this case, was secretly recorded by his stepdaughter, whom he was sexually abusing. The statements amounted to McDade's admission that he was sexually abusing her. The trial court let the audio recordings in.

Status of Recordee Doesn't Matter

Florida is a two-party consent state, meaning that both parties have to agree to record a conversation if there's a reasonable expectation of privacy. That's all well and good, said the appellate court, but in this particular instance, the sexual assault victim was recording statements made of the perpetrator soliciting the sex acts. "[W]e conclude that any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable," the court said.

The supreme court wasn't willing to accept this interpretation of the statute, noting that "[n]one of the exceptions allow for the interception of conversations based on one's status as the victim of a crime." As much as it might further the interest of Justice with a capital "J," the statute nevertheless doesn't permit a crime victim to record an admission of a crime, and a person's admitting to a crime in a setting where he would otherwise have an expectation of privacy doesn't vitiate that privacy.

The court distinguished this case from a 1985 opinion of the Florida Supreme Court holding admissible an audio recording of a murder taking place. In that case, the court said, the murder happened at a business, a "quasi-public" place. The recording device was visible, and the recording wasn't admitted so much for the content of the "oral communications" as it was the sounds of gunshots and "gushing of blood."

Also, Some Hearsay

The court also reversed the trial court's decision to allow the victim's boyfriend to testify. It was his idea to record the conversations in the first place, and he testified that the victim "told [him] she was being raped when she was younger." Though the trial court allowed the statement in to show why the boyfriend helped the victim make the recordings, the supreme court decided that, since the recordings were inadmissible, whatever reason anyone might have for making them was similarly inadmissible.

Ultimately, the most important lesson from this case is that a person doesn't lose an expectation of privacy solely because he's engaged in illegal activity when the recording is being made.

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