Electronic evidence is more and more prevalent in contested divorce and child-custody cases. Electronic evidence includes text messages, Facebook posts, Instagram pictures, audio and video recordings, and e-mails. It is not uncommon for a client, after doing his/her own “investigative” work, to come into the office with a video recording or other electronic evidence and want to use that evidence of his/her spouse at an upcoming Court hearing. But, depending on the facts surrounding how the evidence was obtained, the evidence may be inadmissible and the client’s conduct illegal. So, before hitting “record,” here are a few things to know –
Evidence Available to the Public is Generally Admissible. There is nothing illegal about looking at and capturing a publically viewable portion of an individual’s social networking page. Information someone makes available to the public will most likely be admissible as evidence so long as that information can be authenticated as unaltered and accurate. So, for example, if opposing party posts an inappropriate Instagram picture, screen-shot or otherwise capture that picture, save it, and write a note of the date and time that the picture became available and was captured and saved.
Evidence Obtained Illegally Is Inadmissible. Texas Rule of Evidence 402 states: “All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority.”[i] The important part of this Rule is what comes after except. The implication of this Rule is that any evidence that is obtained in violation of federal or state statutes should be deemed inadmissible and should be excluded as evidence.
Phone Recordings. Recording a telephone conversation that a person is a party to in is not illegal so long as both parties to the conversation are within the State of Texas at the time the conversation takes place. So, for example, a husband can record any conversation he is having with his wife, and vise versa. Likewise, recording a conversation in which a party to the conversation has authorized or consented to the recording is not illegal, with certain limited exceptions. In contrast, if no party to the telephone conversation is aware that the conversation is being recorded, wiretapping is taking place. Wiretapping is prohibited by both federal and Texas law, and thus any conversations obtained through wiretapping will most likely be deemed inadmissible in a subsequent Court proceeding. Interestingly, an Austin Court found that information obtained from wiretapping was admissible because the information gathered through the wiretap was cumulative and other similar evidence was offered and admitted that was obtained through legal means.[ii] But, even if evidence that was obtained by wiretapping is admissible in a Court proceeding under this narrow exception, this does not limit a person’s potential civil and/or criminal exposure for making illegal recordings.
E-mails – Gathering an opposing party’s “relevant” e-mails to use as evidence for an upcoming hearing may be illegal, and thus such e-mails would most likely be deemed inadmissible. It is federal crime, under the Electronic Communications Privacy Act, to intercept electronic mail while it is stored, in route, or after receipt. And, as discussed above, evidence obtained in violation of federal law, will most likely be deemed inadmissible. There is, however, the “consent” argument, which may allow an opposing party’s e-mails to come into evidence. If spouses share e-mail account passwords, by sharing passwords, both spouses have arguably given consent to the interception of their e-mails by the other spouse. In the situation where spouses share e-mail account passwords, e-mails pulled from either spouse’s e-mail account may be admissible at a hearing because they were arguably obtained by consent.
Following Your Spouse – For a photograph or video to be admissible generally, all that needs to be shown is that “the image … accurately reflect the subject of the photograph or videotape at a given time, and have relevance to a material issue.”[iii] But, if the photograph or video was taken while one spouse is “conducting surveillance” of the other spouse, also known as following a spouse without his/her knowledge or consent, there are additional factors the Court will consider when determining whether such video recording or photograph is admissible. Texas recognizes a person’s right to privacy, and the unwarranted invasion of privacy is illegal. Importantly, Courts have found that the right of privacy is not just limited to unmarried individuals, but that spouses have the same rights of privacy.[iv] Therefore, it may be illegal to photograph or record another individual including a spouse in certain situations considering that person’s right of privacy, and in such instances these photographs or videotapes may likely be deemed inadmissible.
This blog post is not meant to be an exhaustive discussion on the “dos and don’ts of recording,” but rather a preliminary and general guide on the issue. Before taking steps to investigate a spouse or other individual, it is best to consult with an attorney to make sure such investigation is legal and thus that the evidence obtained pursuant to this investigation will be admissible at a subsequent Court hearing, if needed.
[i] See, Tex. R. Evid. 402.
[ii] See, Fabian v. Fabian, 765 S.W. 2d 516 (Tex.App.—Austin 1989, no writ).
[iii] See, S.D.G. v. State, 936 S.W.2d 371, 381 (Tex.App.—Houston [14th Dist.] 1996, writ denied.)
[iv] See, Collins v. Collins, 904 S.W.2d 792 (Tex.App.—Houston [1st Dist.] 1995, writ denied.)