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Two-Party Consent Law Upheld Against Victim’s Recording of Her Sexual Abuser

The Florida Supreme Court recently reversal of a criminal case will have a significant impact on the use of recordings as evidence in criminal proceedings. The Supreme Court held that a crime victim may not be able to use the recording that he or she made secretly during a commission of a crime. This not only has significant effects on how the type of evidence can be used to convict defendants, but also on how we use technology in general.

The Case Decided on By the Florida Supreme Court

The Supreme Court’s ruling reversed the decision that the lower courts made to convict and sentence a Florida ice cream truck operator to a life prison sentence for the continual sexual abuse of his stepdaughter over a period of 6 years. The stepdaughter had, on two occasions, used her MP3 player to record her stepfather assaulting her, and turned the recordings over to the police. The lower Courts’ convictions were based largely on the introduction and admissibility of the recordings, which supported the victim’s testimony. The victim did not have any DNA or other physical evidence to support the testimony and, therefore, the convictions relied heavily on the recordings.

Florida State Law and the Reasonable Expectation of Privacy

The Florida state law, however, does not permit the recording of individuals without their consent. The reasoning behind the law lies largely with the expectation of privacy that one has in his or her own home. The theory behind this expectation of privacy, as it applies to the case, is that the defendant and other members of the home have an expectation of privacy that extends to all activities, regardless of if they are legal or criminal. This reasoning, which was put forth by the Florida Supreme Court, counters with the Appellate Court’s reasoning which stated that the State has a special interest in protecting children from domestic violence and sexual abuse, and that the defendant’s expectation of privacy does not trump the State’s interest in protecting these victims.

The Florida “Two-Party Consent” law

The Florida wiretapping law, also known as the “two-party consent” law, is one that requires that all parties involved in a conversation or communication must consent to the recording of their communications. Only consented-to recordings may be admissible in trial. The legislative purpose of the two-party consent law is to protect our right to privacy, especially in our own homes. Generally, the right of privacy was protected against the government, but it has since been expanded to include protection against others who would use your private information against you in criminal proceedings.

Federal law provides a one-party consent standard which permits that as long as one member of the party (including the recorder of the communication) consents, then the recording is lawful.

Exceptions to the “Two-Party Consent” law

There are, however, exceptions to the two-party consent law. The most common exception to the law is when the communication takes place in a situation where you would have little to no reasonable expectation of privacy. An example of this would be if you had a conversation outside in a public place where it would be reasonable that another person, not privy to the conversation, might overhear. In that circumstance, it would be unreasonable for the person to expect a significant level of privacy.

Future of the “Two-Party Consent” Law in Florida

The implications of the Florida Supreme Court will have a significant impact on the admissibility of certain types of evidence used in criminal proceedings. Since the Florida Supreme Court’s ruling against the admissibility of the stepdaughter’s recordings, many are calling for the Florida state legislature to amend the current law to allow the admissibility of crime victim recordings into evidence in criminal trials, or even broader, to allow any recording into evidence which supports a showing of criminal activity. Time will tell how the Florida legislature will respond to the Supreme Court’s recent ruling. Until then, the ice cream truck operator will get another bite of the apple with new criminal proceedings to begin soon.

Experienced Criminal Defense Attorney in Fort Lauderdale

The “two-party consent” law not only makes it harder to bring in recordings as evidence in a criminal proceeding but the use of the criminal recordings outside of trial can have civil and criminal consequences as well. An experienced Fort Lauderdale criminal defense attorney like Kevin J. Kulik can help you navigate through the intricacies of Florida’s “two-party consent” law. Contact the Law Offices of Kevin J. Kulik today for a free and confidential consultation.

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