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A collection company calls a client. When the client is connected to the collection company agent. The agent informs the client that the call will be recorded. If the client states, "I do not consent to being recorded" but continues the conversation. Can that recording be used as evidence later on during a court case regarding collections?

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    Probably state/country dependent. An underlying question would be whether the consent of both parties is required, or just one. – cHao Nov 28 '17 at 18:11
  • Use any 2 party consent state. – Digital fire Nov 28 '17 at 18:22
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    Either way, you arguably give consent anyway by continuing the conversation. If you know they're recording the call, and that this is something they're going to do even if you'd rather they not, then your options are to end the call or acquiesce to the recording. "I do not consent" is basically bullshit, especially if you know they're not going to stop. – cHao Nov 28 '17 at 19:31
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    The simpler question is whether continuing to talk in such a scenario violates the law in 2-party states. Use as evidence is an added complication that derives from answering the first question, viz "when can illegally obtained evidence be excluded". – user6726 Nov 28 '17 at 21:47
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It depends on the country/state.

Non-consensually recorded conversations cannot be used as evidence if both these conditions are met:

  1. Exclusionary rule applies (which means illegally obtained evidence cannot be used in court); AND
  2. "Two-party consent" law applies (which means consent from both parties is required for the conversation recording to be legal).

If either of those conditions is not met, then recording can be used as evidence. Furthermore, if condition 1 (exclusionary rule) is not met, then recording can be used as evidence regardless how it was obtained — even if intercepted by a third party.

  • Your representation of point 2 is legally inaccurate: you've reified the "two party consent" metaphor when explicit consent is not required. Reference to actual law (statutes and case law) would be called for. Simple awareness counts. – user6726 Nov 29 '17 at 6:03
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    Also note that me recording you without your knowledge is not a violational of your constitutional rights, even if it is a crime in my state. You need to provide evidence that the exclusionary rule would also applies in this case. – user6726 Nov 29 '17 at 6:11
  • @Greendrake It's not clear that the "exclusionary rule" makes any difference in the OP's scenario, where "debt collections" are civil in nature and not criminal. "The exclusionary rule does not apply in a civil case..." wikipedia – Upnorth Nov 29 '17 at 6:43
  • @user6726 Yes, if you "do not want to be recorded", you would generally stop talking and hang up, as otherwise you have continued speaking while you know they are still recording -- your consent thus being implied, in many of the cases I have reviewed on topic. – Upnorth Nov 29 '17 at 6:52
  • There generally isn't a strict exclusionary rule in civil cases or when the evidence is gathered by non-governmental action. Instead, a balancing test is usually applied. – ohwilleke Nov 29 '17 at 7:52

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