Minor’s recording of alleged abuser’s confession admissible, says Brooklyn judge

February 12, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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In certain instances, a minor can consent to the recording of a conversation he or she is party to, a Brooklyn judge ruled.

A 14-year-old child and her stepmother arrived at Kings County Hospital and informed hospital staff and police that the girl’s father allegedly raped her two weeks beforehand. Brooklyn Special Victims Squad Detective Laurel interviewed the young woman back at the Special Victims office.

During the interview, the girl informed Laurel that she had a recording of a conversation she had with her alleged abuser wherein the suspected abuser apologized for the abuse and pleaded for the victim not to contact law enforcement. The young girl handed the cassette of the recorded conversation to Laurel.

During an evidentiary hearing, the alleged abuser’s attorney moved to have the recording deemed inadmissible. The attorney argued that as a 14-year-old minor, the young woman did not have the legal right to record her conversation with her alleged abuser because she did not inform the abuser that the conversation was being recorded and the victim herself, as a minor, could not consent to recording.

New York’s eavesdropping law generally makes it illegal to record another’s conversation except where one party to the conversation consents to the recording. It is enough that the person initiating the recording is party to, or a part of, the conversation at hand. The defendant’s attorney argued that the alleged abuser did not ask permission to record, and although the 14-year-old was a part of the conversation, as a minor she could not legally provide one-party consent to the recording. It is on these grounds that the defense deemed the recording inadmissible.

Brooklyn Supreme Court Justice Michael Gary looked to the legislature for guidance on the issue as to whether or not a minor can consent to the recording of a phone conversation. “The Legislature…has always sought to protect minors who are crime victims,” Gary wrote. In that vein, Gary elucidated, the New York State Legislature altered the age for a minor to give sworn testimony from 12 years of age to nine years of age.

“Legislation has been enacted which specifically deems infants competent under certain situations,” Gary noted. As the legislature has moved toward allowing minors to testify at a younger age, it is not a far legal leap to allow a 14-year old to consent to the recording a conversation where she is party to. Therefore, Gary ruled, the tape is admissible in court.

The defense further argued that there is no way to validate the authenticity of the recording, since the original tape is lost and the copied version is altered. According the court documents, when Laurel duplicated the original recording, he added a bit of information at the top of the tape. At the evidentiary hearing, Laurel testified that he included some additional identification material in his own voice, stating, “I might have had a heading, the time that it was recorded, where it was re-recorded at. That was the jist [sic] of my input on to it.”

Gary noted that the tape may be precluded for lack of authenticity, but this was an issue for the jury to determine. “If the People can establish through the testimony of the detective and/or the complainant, who is purported to have actually made the recording, that it is the same or substantially the same as the original one, then the jury can determine how much weight to give it,” Gary ruled.

Nevertheless, Gary allowed the recording to be admitted into evidence at trial.