By Matt Rooney
And as is the case with many questions in the legal arena? The answer is complicated and often highly circumstantial.
First and foremost, you should always consult your attorney before pressing “record.”
Why? The New Jersey Wiretapping and Electronic Surveillance Act is central to any analysis of these issues. New Jersey is a “one-party consent” state. That means only one party needs to consent in order for the conversation to be recorded. Put another way: you do not need to obtain consent to record your spouse provided your spouse KNOWS you’re a party to the conversation; if you’re sitting in Atlantic City and talking to your spouse on the telephone (she’s in Newark), you can usually record it.
The “line” is not always easy to see when you’re in an emotionally charged situation. Generally, you cannot leave a recorder on the table or under a potted plant, walk away, and then continue surreptitiously recording. Video taping someone with a video phone in a public space is usually permissible; the key is often whether (1) the recorded individual had a reasonable expectation of privacy, and if (2) the recordation qualifies as harassment.
However, installing a secret recording device in a house, car, or laptop used by your spouse could run afoul of not just the New Jersey Prevention of Domestic Violence Act (and result in the entry of a restraining order) but also state criminal law for having invaded someone’s privacy or even stalking. Civil remedies could arise, too, meaning you could get sued for monetary damages in civil court.
These weighty issues arise before we even get to the more proximate consideration of whether the recording will be deemed admissible in court.
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