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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11339
Experience:  Licensed Texas General Practice Attorney
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If a recording is made in florida of a conversation in a house

Resolved Question:

If a recording is made in florida of a conversation in a house not on a phone, and there isn't proof of a date the recording was made can it be prosecuted?
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Yes, a prosecution can still be brought, but there would be a possible defense of statute of limitations. You see, the elements of the crime do not specify a time period. So the prosecution does not need to prove the date and time that the recording was made, but rather that it was unauthorized by all the parties to the conversation.

ScottyMacEsq :

Assuming this is a regular recording, not of a phone call or radio transmission, then that would be a 1st degree misdemeanor, and the statute of limitations for beginning the prosecution of such an action would be 2 years.

ScottyMacEsq :

Yes, a prosecution can still be brought, but there would be a possible defense of statute of limitations. You see, the elements of the crime do not specify a time period. So the prosecution does not need to prove the date and time that the recording was made, but rather that it was unauthorized by all the parties to the conversation.

ScottyMacEsq :

Statute of limitations are an affirmative defense. An affirmative defense is a defense that says that even if what the plaintiff (or state, in criminal matters) says is true and would otherwise give the plaintiff a right to recovery or conviction, there's something that says they shouldn't. The statute of limitations is one such affirmative defense.

ScottyMacEsq :

Yes, a prosecution can still be brought, but there would be a possible defense of statute of limitations. You see, the elements of the crime do not specify a time period. So the prosecution does not need to prove the date and time that the recording was made, but rather that it was unauthorized by all the parties to the conversation.

ScottyMacEsq :

The thing about affirmative defenses is that the party asserting the affirmative defense has the burden of proving, by a preponderance of the evidence, that defense.

ScottyMacEsq :

So while it's not going to be a basis to get the entire case dismissed, it's still possible to use it as a way to win if it can be shown that it was made more than 2 years ago.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

So while it's not going to be a basis to get the entire case dismissed, it's still possible to use it as a way to win if it can be shown that it was made more than 2 years ago.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

I can have that person arrested just cause I think it's them on the recording?

Customer:

Alright I'm a little confused. I get an email with myself and I think I know who the other person is on the recording cause they sent the email to me.

Customer:

I can have that person arrested just cause I think it's them on the recording?

Customer:

Alright I'm a little confused. I get an email with myself and I think I know who the other person is on the recording cause they sent the email to me.

ScottyMacEsq :

Apologies for the delay, I was out of the office when you responded.

ScottyMacEsq :

If that other person made the recording, without your knowledge, that is a crime and you can have them arrested, yes.

ScottyMacEsq :

(that is, you can press charges against that person, and if the police choose to pursue it, they can arrest that person)

ScottyMacEsq :

Did that clear things up?

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

But I have no way of proving that's who I assume is on the recording will it matter?

ScottyMacEsq :

You can still make a charge against this person. If this person sent it to you, he/she will have to explain where he or she got it.

ScottyMacEsq :

Either they received it from someone else that made the recording, or they actually made it themselves (which is a crime).

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

I understand. So basically if they say it isn't them on the recording or they recieved it from someone else their guilty, even though I myself can't prove it's them or where they received it from.

ScottyMacEsq :

It's not that they're guilty, but they would need to explain how it came into their possession from whom, etc... and if the voice sounds the same, then they'd have to explain that as well.

Customer:

It sounds like the police would make the assesment, but if the person says it isn't him, and he just sent it, and explains he received it from an online source then he would have to reveal it. Honestly that sounds pretty complicated to prove.

ScottyMacEsq :

If he received it from an email, that would be traceable.

ScottyMacEsq :

Exactly.

ScottyMacEsq :

He'd pretty much have to explain all of that.

ScottyMacEsq :

If from somewhere else, there could still be traces on it. But then how would he know what this is a recording of and why was he sent it?

Customer:

I was under the impression you needed actual proof it was the person on the tape before an arrest could be made. I don't have proof other than it sounding like him, and he sent it to me, but all he really needs to do is say it came from someone else, and provide an online location to clear his name.

Customer:

This still sounds very grey area more to who's listening to the story than a cut an dry your arrested or not.

Customer:

I know he knows my friends or so called friends so I guess anything is possible. I know in these type of cases typically it's revealed on the recording who the person is. He never says his name.

ScottyMacEsq :

It doesn't have to be "actual" proof, but "probable cause".

ScottyMacEsq :

That is, given all the evidence, if it's more likely than not that he made the recording, that would be enough for an arrest.

Customer:

so would it be a felony?

ScottyMacEsq :

If there was someone else in the conversation (such as yourself) you could testify (or that person could testify) as to the person who was the speaker.

ScottyMacEsq :

It would not be a felony, but a 1st degree misdemeanor.

ScottyMacEsq :

Only if it was made with intent to blackmail, defraud, etc... another would it be a felony.

Customer:

Well he just revealed the recordings through email no blackmail was made.

ScottyMacEsq :

Then it would be a 1st degree misdemeanor.

Customer:

I didn't realize probable cause means you could have someone arrested

ScottyMacEsq :

That's still within the discretion of the police.

ScottyMacEsq :

But they do need probable cause to arrest, not absolute proof.

ScottyMacEsq :

(if he actually made the recordings)

ScottyMacEsq :

Even a jury doesn't need absolute proof to convict, but only proof beyond a reasonable doubt.

ScottyMacEsq :

(if he actually made the recordings)

ScottyMacEsq :

It's what's needed to arrest. It doesn't mean you can have someone arrested.

Customer:

well the email was sent revealing I was recorded. I don't know when it happened, but it took place. I can't totally say it ws him I just received it from him. I guess he would be arrested from what your saying.

Customer:

I haven't sen him in 4 months or spoke to him on the phone so when it took place is a guess at best

ScottyMacEsq :

No, I'm saying that he could (not necessarily would) be arrested, if the police have probable cause to believe that he made the recording without your consent.

ScottyMacEsq :

(and they decided to arrest him)

ScottyMacEsq :

But your testimony that it happened within the last 2 years would indicate that it was still within the statute of limitations.

Customer:

I don't know if it happened within the last wo years I just received the recording I don't know when it was recorded

ScottyMacEsq :

(for that to be a valid affirmative defense)

ScottyMacEsq :

Even that is not going to be "fatal" to your case, because like I said at the beginning, that's an affirmative defense. He would have to prove that it was not made within the past 2 years.

Customer:

I know your talking about the prosecution in court. I'm talking about if the police will pursue it.

ScottyMacEsq :

Even that is not going to be "fatal" to your case, because like I said at the beginning, that's an affirmative defense. He would have to prove that it was not made within the past 2 years.

ScottyMacEsq :

That's what I'm saying. The fact that the recording was made without your consent means the law was broken, and they can arrest.

ScottyMacEsq :

The time period is relevant only if it is brought up as a defense in court.

Customer:

wow I learn something new everyday. Your saying the police can at their discretion arrest him regardless of when he claims it was made

Customer:

Unless he can prove they were made 2 years prior

ScottyMacEsq :

It does not mean that a crime was not committed.

ScottyMacEsq :

No, that does not affect whether or not a crime was committed.

ScottyMacEsq :

Yes. Again, when it was made is only a defense to prosecution.

ScottyMacEsq :

Police can still arrest, even if he can prove it was made more than 2 years ago.

ScottyMacEsq :

But the prosecution could not secure a conviction in that situation,.

Customer:

so if I say I never gave consent ot be recorded that's the only proof I have to submit the law was broken

ScottyMacEsq :

You don't have to submit any proof. You're not the one that is charging this or prosecuting it, although you would likely have to testify as to it. You would testify as to your knowledge (especially that it was never consented to) but you don't have any obligation to testify as to (nor does the prosecution have to prove) when the recording was made.

ScottyMacEsq :

That's an affirmative defense, and if it's brought up at all, it would have to be by him as part of the defense. It is not a necessary element of the crime that would have to be proven.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

ScottyMacEsq :

Are you there? Please note that I am still here, awaiting your response.

ScottyMacEsq :

Should I continue to await your response, or may I assist the other customers that are waiting?

ScottyMacEsq :

 


My apologies, but I must assist the other customers that are waiting. If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (> 1 hour) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!


 

Customer:

i think you were extremely helpful. looks like I have a case it I choose to pursue it. would he be arrested on site?

ScottyMacEsq :

That's entirely up to the police. They might not even arrest him, but have him "come in" to the station, etc...

ScottyMacEsq :

Was there anything else?

ScottyMacEsq :

If there's nothing else, please rate this answer. Please note that I don't get any credit for the time (> 1 hour) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

Customer:

Sorry no thank you,again.

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11339
Experience: Licensed Texas General Practice Attorney
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