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Would it be legal for me to record a phone call, without the other party’s explicit knowledge or consent that it was being recorded beforehand, as long as I, a participant in the conversation, consent to it being recorded, to use as evidence in a federal court case if both calls were made in single party consent states (i.e., from Texas, Connecticut, South Dakota, etc)?

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  • If they are both single party states, then the recording is legal. Why wouldn’t it be admissible?
    – SegNerd
    Oct 1, 2023 at 19:47

1 Answer 1

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There are two distinct legal questions lurking in this question.

One, in a conversation on the phone between someone in a single party consent state and a two party consent state, is it legal for the single party consent state participant to record the conversation?

Second, assuming for the sake of argument that the recording was made illegally, is it admissible in evidence in a civil lawsuit in federal court?

I'll answer only the second piece.

There is not an automatic exclusionary rule to exclude the admission of evidence illegally obtained by a private individual in a federal civil lawsuit in the way that such evidence would be automatically excluded from evidence in a criminal case if it was obtained illegally by law enforcement.

Instead, the court applies a balancing test on a case by case basis, weighing the circumstances that render the obtaining of the evidence illegal against the probative value of the evidence to establishing a disputed evidentiary fact in the case. The federal judge has fairly wide discretion to admit or exclude illegally obtained evidence in a federal civil lawsuit.

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  • Hi, thank you for your response. The hypothetical call recording in question was between only two parties and no more, both in single-party consent states. One party was aware of the recording and consented to it, while the other wasn’t aware that it was being recorded and therefore couldn’t consent to it. Based on your prior answer, I assume that this recording is completely legal and admissible as evidence in federal court, is that correct?
    – greenblue
    Apr 23, 2023 at 4:42
  • "it is admissible in evidence in a civil lawsuit in federal court." I think you mean "is it ..?" Sep 29, 2023 at 6:29
  • @Acccumulation Thanks. Fixed.
    – ohwilleke
    Sep 29, 2023 at 15:07

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