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Can you record someone without them knowing for your defense and use it in court?

Carmel, NY |

A friend of mine is battling a child custody case. The father said she promised her a dog and she didn't. If that was record would that be allowed in court?

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Attorney answers 3


You have not indicated what kind of recording is involved here. Recording a telephone conversation to which you are not a party is "wire-tapping" and illegal without a court-issued warrant. Recording a telephone conversation to which you are a party is illegal in certain states, called the "two-party" states. A list of such states that may be reliable is the wiki "telephone recording laws." If you mean a recording of a personal conversation the rules are slightly different, but usually acceptable if the recording is made by a party to the conversation (as in with a tape recorder concealed in the pocket.) A recording made legally is admissible as evidence if the rules of evidence are satisfied. For a case in which recorded phone conversations were essential to an excellent result in a child custody case, see the Idaho Supreme Court case cited on my profile page.

Best wishes for a favorable result, and please remember to designate a best answer.

This answer is offered as a public service for general information only and may not be relied upon as legal advice.


I dont know the value of someone promising or not promising a dog. Do not record a telephone call and do not leave a recorder set with voice activation somewhere hidden in a house or car all the time.

This information provided is in the nature of general information and in no way creates an attorney client relationship with anyone including the individual who posted the question.


In NYS one party to a conversation must consent to the recording. In other words, you can record your own telephone conversations but no those of third parties in which you are not involved.

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