Eavesdropper Testimony

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 What Is Criminal Procedure?

Criminal procedure refers to the legal process of adjudicating claims for a person who is being accused of violating criminal laws. The general intention behind all criminal procedures is known as the “presumption of innocence;” meaning, a suspect is considered to be innocent until they are proven guilty. As such, the burden of proof is on the state prosecution to prove beyond a reasonable doubt that the defendant actually committed the crime in question.

Criminal procedures generally include a variety of Constitutional protections for the defendant, which intend to prevent abuses of the justice system. Some of these protections include:

Criminal procedure can be thought of as a timeline, which begins with the apprehension of the suspect and ends with the final verdict or appeal. Criminal procedure includes matters such as:

  • Stop, detention, and arrest;
  • Search and seizure;
  • Booking and filing charges;
  • Suspect or eyewitness lineup identifications;
  • Appointment of counsel, also known as assigning a court-appointed lawyer to the defendant;
  • Plea bargaining;
  • Evidence;
  • Trial;
  • Sentencing;
  • Appeal; and
  • Probation and/or parole.

What Is Considered To Be Eavesdropping?

Eavesdropping is considered to be a crime in many states when one party secretly records, overhears, and/or shares the private communications of another person without their consent or a court order. This can also include when an enhanced listening device is being used, even if the communication occurs in a public setting.

An example of this would be how if you are the plaintiff in a case, and you stand behind the defendants and their lawyer in a public place. You can overhear them discussing their legal strategy, as well as hear them confess their guilt.

Although the discussion occurred in a public place, you knew that the conversation was intended to be private; however, you use the information that you gathered from that conversation to strengthen your case. Under these circumstances, you could be charged with a criminal offense associated with your eavesdropping activities.

What Is Wiretapping?

Wiretapping laws are commonly associated with the crime of eavesdropping. Depending on the jurisdiction, private citizens may be allowed to record another person without their consent, as long as one of the parties who is being recorded has given their consent to be recorded.

In law enforcement circumstances, the police are required to obtain a court order or legal authorization in order to record the criminal activities or communications of a suspect. Law enforcement authorities must provide a judge with their probable cause for the wiretap. The judge may also require that law enforcement prove that they have exhausted all other, less intrusive methods of obtaining this information, or that the other methods that they have considered would be too dangerous when compared to wiretapping.

It is important to note that police wiretapping is generally a rare phenomenon. Without a court order, the police cannot listen to phone conversations unless one of the parties consents to their use of a wiretap. Any information that they gather cannot be used against a party in a criminal trial; the same applies for information that is gathered in violation of the court order. The obtained information can be suppressed as the result of an illegal search, and if the police use a wiretap in violation of a court order or without a court order at all, it could be considered police misconduct.

Under some specific circumstances, the police may obtain an emergency wiretap in which they will work with the phone company in order to set up the wiretap immediately. The prosecutor will have 48 hours in which to obtain a court order. This is not considered to be an “exception” because a court order is still needed for the operation to be considered legal, although the order comes after the wiretapping begins and not before.

What Will An Order To Eavesdrop Include? Are There Eavesdropping Scenarios Which Do Not Include Law Enforcement?

If law enforcement succeeds in presenting their request for a warrant that is based on sufficient probable cause, the judge will issue the order which allows the wiretapping to proceed. The court’s order may include limitations for law enforcement to conduct the wiretapping, such as restrictions on the type of information to be gathered.

Examples of this include, but may not be limited to:

  • How long the wiretapping may continue for;
  • When and where the wiretapping may occur; and
  • Whether law enforcement must exclude any parties from their wiretapping activities.

In terms of eavesdropping that does not include law enforcement, people may place hidden cameras in their home to record certain activities. An example of this would be how concerned parents may install a “nanny cam” in order to observe the actions of a caretaker whom they believe may be abusing their child. Such cameras record visuals as well as sounds; whether this is legal depends on your specific state.

While it is generally allowed to record what happens in your own home, some jurisdictions consider it to be a crime if the camera records the communications of people in your home who are unaware that their communications are being recorded. This can also depend on where in the home the recording occurs.

An example of this would be how it may be acceptable to record your unsuspecting caretaker in the kitchen, but not in the bathroom, as there is a greater expectation of privacy. Additionally, the court will consider whether the recording was made for a legal purpose.

It is generally not considered to be a crime to record people out in public, such as at the mall or on the street. However, if the recording is being conducted for harassing or voyeuristic purposes, you could be arrested for committing a criminal offense.

Employers may record their employees when they:

  • Suspect the employee of stealing office equipment;
  • Need to protect proprietary information;
  • Need to limit liability; and/or
  • Have other job-related purposes for recording employee activities.

Whether an employer may legally record an employee’s activities, and by what methods, depends on federal laws such as the Electronic Communication Privacy Act as well as the laws of each state. Some common employer recording methods include:

  • Telephone;
  • Computer key strokes;
  • Email; and/or
  • Key access.

Is Eavesdropping Allowed As Testimony In Court?

Whether an eavesdropper can testify in court will largely depend on the method by which they obtained the information, as well as the nature of the conversation that they overheard. An example of this would be how some conversations are considered privileged and are allowed into evidence in court, but under considerably limited circumstances.

Examples of such conversations generally include:

If law enforcement has obtained recordings of the activities or communications of a criminal suspect, and have done so under the authority of a court order, that testimony will be allowed in court. Additionally, the court may allow evidence from a nanny cam if there is no sound recording, or if the video is muted.

Should I Hire An Attorney For Issues Involving Eavesdropper Testimony?

If you have any issues involving eavesdropper testimony, you should consult with an area criminal defense attorney. An experienced and local criminal defense lawyer will be best suited to helping you understand your state’s specific laws regarding eavesdropping. Additionally, an attorney will also be able to represent you in court, as needed.


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