By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is part three of a three-part series on surveillance in domestic cases. Click here to read part 1 and click here to read part 2.

The Costs: “We can’t go on together with suspicious minds. . ..”

Keep in mind, these hypothetical situations only apply federal law. Your state laws may afford greater protections – i.e., prohibit more conduct – or mirror federal law. In particular, not all states apply the “consent exception” to state wiretapping laws like the Federal Wiretapping Act. 

That means, even though you are a participant to a conversation and would not violate the FWA if you secretly recorded the conversation, you may violate your state’s laws. Your best move is to err on the side of caution – forgo recording, wiretapping, tracing, monitoring, tracking, etc., altogether and always consult a lawyer in your state.

The costs could be great.

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is part two of a three-part series on surveillance in domestic cases. Click here to read part 1 and click here to read part 3.

The Situations

Could you commit a civil or criminal wrong simply by tape recording your spouse’s conversations, copying her e-mails, following her with a camera or doing any of the number of things your friends have suggested or you have seen in movies? Leaving aside my caveat that you should check the laws in your state, here are some common situations in which the federal laws do and do not apply.

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is part 1 of a three-part series on surveillance in domestic cases. Click here to read part 2 and click here to read part 3.

She trounced into the courtroom with an armful of my client’s text messages and e-mails, a briefcase housing a secret video of him kissing his girlfriend swaying with her pointed steps. This was the kind of case I knew would be difficult from the outset. Try as I might to keep the judge from getting bogged down in the battle over who was more at fault for the marriage’s breakdown (which is usually irrelevant to divorce proceedings, anyhow), opposing counsel in this case wanted to rehash every discord that ever erupted in this 20-year marriage. To a certain extent, over my objections, the judge let her – I suppose in a half-pitying gesture to let her client have the proverbial “day in court” and/or to discern whether, amid all the documents and recordings, there was something relevant to property distribution or spousal support.

After about ten minutes, the judge threw up his hands and exclaimed, “I’m not hearing this. I’ve had enough. What do you have, a suspicious mind?” The attorney and her client sat speechless. My client leaned over and in a sarcastic/relieved tone hummed the opening to Elvis’ “Suspicious Minds.”

You are not alone if you have ever considered tape recording your spouse’s conversations, monitoring her e-mails, hiring a private eye to follow her with her boyfriend, etc. The temptation is great, particularly because technology has advanced so much that tracking and recording devices are small, efficient and affordable. But there are moral, ethical and strategic costs – and, under certain circumstances, criminal costs – that you must understand and discuss with your lawyer first.

In the first of a three-part series, we’ll look at surveillance laws. Subsequent parts will study the situations and the costs.