With technology being what it is, and smartphones being what they are, a lot of people worry about the possibility of being either audio or video recorded, and then having that find their way into court. There are some legal answers to this in Texas, but then there are also some elements that might be dependent on which judge hears your case.
Texas is what’s called a “one-party consent” state when it comes to recording. That means, if there’s a phone call between you and another person, that call can be recorded as long as one party involved in the conversation consents to it being recorded. That means that another person can call you and record the call without your consent, as long as the other person deems it okay to record. Conversely, you can give yourself the okay to record a call with someone, and since you’re one party consenting to the recording, that’s all that’s legally required.
The law, to be fair, is geared more against wiretapping — when a third party is listening in on both sides of a call without either person’s knowledge.
As the Texas Digital Media Law website spells out, “The law does not cover oral communications when the speakers do not have an ‘expectation that such communication is not subject to interception under circumstances justifying such expectation.’” That means, if it’s a conversation that’s in a public place, it’s possible to record it. But if it’s a couple fighting in their house and a relative records the conversation without the knowledge of either party, that’s not okay.
What this means in a family law case is that you want to be careful in your interactions with everyone involved, acting as if any phone conversations are being recorded. In a number of cases, it might actually be more prudent for the people involved in a divorce or a custody case to keep communications short, written, and to the point. As you’re preparing to send an email or text, it doesn’t hurt to ask yourself, “Do I really want to send this?”
In a divorce case, though, it could actually be a disadvantageous move to use evidence captured through a one-party consent recording, even if it is legal. As we discussed a few weeks ago in our article on protecting yourself online, it can reflect poorly on the person who is presenting the evidence, even if it is legally obtained.
It’s best to bring the evidence to your lawyer along with a full, honest disclosure of how you got the evidence. Your lawyer is far more likely to know how the evidence will fare in a certain judge’s courtroom, no matter how strongly you feel about what might be captured in a recording.
And, if you suspect that a recording of you has been made that might be problematic, it’s best to let your lawyer know in order to be prepared.
At the Law Office of Lisa A. Vance, we’ve got the level of experience that allows us the perspective needed in these cases, from the understanding of what technologies might be brought into the courtroom to the qualities of certain judges and opposing counsel who might be involved in your case. Schedule a consultation, and we can determine the best way to go about resolving your family law situation.