Florida Supreme Court Rules Certain Recordings Taken Without Permission Inadmissible

WEST PALM BEACH, Fla. - Dec. 24, 2014 - PRLog -- The Florida Supreme Court recently decided to grant a new trial for a man accused of sexual abuse because a substantial portion of the evidence used to convict the alleged perpetrator was a recording taken without his knowledge or consent.

The case focused on Richard McDade, a Florida man who was convicted of multiple counts of sexual abuse and battery (http://www.meltzerandbell.com/sex-crimes/). He previously was sentenced to life in prison for sexually abusing his teenage stepdaughter who secretly recorded two of the incidents.

The court ruled a new trial was necessary because state law prohibits conversations from being secretly recorded, and it makes no exception for victims of a criminal offense providing proof of the crime. West Palm Beach criminal defense attorney Steven Bell said this ruling seriously could affect future cases.

"This ruling can have a significant impact on the way evidence is gathered in criminal cases," Bell said. "Video and recordings often are a way to get a glimpse into an event without actually being there. Now, even more recordings could be inadmissible."

Under Florida Statutes Annotated § 934.03, it is unlawful for any conversations to be recorded or intercepted through any wire, oral or electronic communication without the consent of both parties. This means, generally, all parties must consent to being recorded, Bell said.

The court ruled the recordings were not valid evidence under Section 934.06 because the "recordings were made surreptitiously.'" According to the ruling, the accused made those statements in his home and had the expectation his words would not be recorded.

"When a person is in his or her home, there is a level of privacy expected, whether or not a criminal act is being committed," Bell said. "In these situations, a person typically does not expect to be recorded. Doing so without consent could infringe on privacy rights."

The appeals court previously ruled “any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable," saying society is concerned with the welfare of children and takes interest in protecting them from sexual abuse. The court said sex crimes often are treated differently

The Florida Supreme Court disagreed. According to the ruling, there are exceptions in which a person could be recorded, such as if he or she consents to the recording. None of the exceptions, however, allow for the interception of conversations based on one’s status as the victim of a crime.

"In this instance, the alleged victim essentially was conducting her own investigation into a criminal offense," Bell said. "This makes labeling the recordings as valuable evidence difficult considering it was not an official law enforcement investigation. Even then, there still would be restrictions."

Bell said this scenario could be a persuasive case in making an exception to allow victims of criminal acts to gather evidence through hidden or secret recordings. However, the court ultimately has to uphold the law as currently written.

The high court ruling earlier this month stated there is no legal basis for the appeals court's reference to what society might consider reasonable. The new trial will be held without regard to the girl's recorded statements.

Steven Bell, of Meltzer & Bell, P.A., is a West Palm Beach criminal defense lawyer (http://www.meltzerandbell.com/) who represents those accused of sex crimes, violent crimes, drug charges, DUI and other offenses