Although several states bar private citizens from recording conversations without the consent of all parties, one party consent recordings often appear in civil and criminal cases. While law enforcement agents and informants record consensually, many more recordings are made by private individuals with employment, domestic or personal grievances. Private citizens of all types secretly employ a recording device to document their claims of wrongs done them, either before or after employing attorneys. With the technology to record audio and video in nearly every purse and pocket, the scope of opportunities to use recordings to document statements, events, actions and reactions has grown exponentially in the last few years. Today, the most malevolent manipulation of recorded evidence begins more often at Best Buy than at the FBI office.
The motive to record and the manner of recording such evidence ultimately decide a consensual recording's value as evidence. Private citizens' recordings require the same scrutiny and analytical discipline as the recordings of law enforcement agents. Regardless of the degree of technical sophistication, every recording brought to court proves something even though what it ultimately proves is often not what was intended.
We always begin our analysis of a consensual recording by clarifying the method and circumstances of its making. Are we working with a suspect duplicate of diminished intelligibility? Are the circumstances such that the audible and signal content is suspect? The authenticity and integrity of evidence is more questionable when it is recorded in the midst of litigation or when emotional conflicts are at a peak. Angry, wounded, desperate people do things in conspicuous ways, and it is not rare to find blatant attempts to alter audio recordings. Such adulteration may seem like the perfect crime in the moment, but the techniques of forensic and acoustic examination are far more sophisticated than home schooled attempts at fakery. Because the incidence of falsification is higher with private one party consentual recordings, we analyze the content only after we are confident that the original format of the recording is in hand and the authenticity of the evidence is beyond challenge.
The analysis of the language and acoustic content of consensual recordings is often more complicated than law enforcement recordings because amateur recorders are less aware of the technical and linguistic vulnerabilities of being recorded. Where law enforcement consensual recordings strive to draw a line with a fine point, do-it yourself recordings tend to illustrate with crayons. Amateur recorders are often unaware of the effects of elevated background noise on intelligibility or presume the recorder is hard of hearing and try to use a whisper as if it were a substitute for an erase switch. Even when fakery and manipulation are not in play, the language analysis of the consensual recording is also complicated because the range of conversational interaction and subject matter are unconstrained by the typical police investigative interests.
Whatever police undercover work may be, it doesn't find its way into the myriad of bizarre situations that are commonplace with home made recordings. Consensual recordings are sometimes ingenious counterfeits of reality, staged events created for shock value or to destroy reputations. It may be recorded for gratuitous amusement, to commit extortion or to encourage unwarranted prosecution. The malicious ingenuity of the free lance would-be evidence fabricators is a challenge to courts and to lawyers in every jurisdiction.
The deceptive potential and evidentiary infirmities found in recorded evidence are as infinite as are the misuses of human imagination, but is is still the artful verbal misrepresentation that influences the conversational behavior of another individual that remains the most masterful way of distorting a recorded conversation to achieve a malicious end. The obligation to conform to a professional role or adherence to social norms can also be exploited. A clever offer of helpful advice or admonishment can induce a naive target to speak or to respond in a contrived way or encourage behaviors perhaps appropriate in one context that would have adverse implications in a different context.
The reliability juries ascribe to recorded evidence is evenly matched by the limitless opportunities for trickery in the use of recorded evidence in every imaginable set of facts. The enormous popularity of tiny consumer recording gear is immersing our generation in a sensorial flood of recordings. The universality of communication with images and audio recordings of all varieties only sharpens the skill set of those who would use media evidence to wound their rivals, settle scores and address grievances, real or imagined.
Our work has always been about wringing out deception and seizing every advantage in recorded evidence so that juries will know the difference between the truth and the lies. In today's media-intensive social and cultural environment, even the most common consumer recording devices become commonplace tools of forgery, frame ups and fraud in civil and criminal litigation.