Legal Question in Criminal Law in Michigan

Re: Recording conversations

In Michigan, you may record any conversation you are personally involved in (on the phone or face-to-face), and do not have to tell the other person/people that you are recording. This kind of recording is admissible in a civil or criminal trial (as long as the content of the recording is relevant to the case). Other sates may require the knowledge and consent of ALL participants to the conversation in order to legall record a conversation, but Michigan only requires the "ok" of one party.

But, you are not allowed to record conversations that you are not a party to (involved in personally) without at least one of the participants knowing you are doing it and approving it. That's evesdropping. Penalities range from 90 day/$500 misdemeanors to 2 yr/$2,000 felonies. MCL 750.539c is a 2-yr felony for eavesdropping on a private conversation with a device.

The illegal evesdropping recording would probably be admissible in a civil trial because the so-called exclusionary rule applies in criminal cases when the government violates constitutional protections (so the remedy is to suppress the ill-gotten evidence). The recordings might even be admissible in a criminal case as long as the person doing the recording is not considered an agent of the government (which would be the case if the police asked a private citizen to do the recording knowing that the cops would not have been allowed to do so themselves or get a search warrant to tape).

The risk of trying to use illegal evesdropping recordings is that you are exposing the fact that you made or have such recordings, which might subject yourself to a criminal investigation and/or prosecution. Additionally, the parties who were having the conversation might have a civil cause of damages against you for invasion of privacy.

We have had folks contact our office with information that, for example, the parent secretly tape recorded a child's conversation with someone about an illegal act (e.g., underaged child talking to an adult about having had sex together). We've pretty much had to tell the parent that they cannot do that anymore because it is illegal, and that we would not use it in court. The parents' intentions were good (protecting their child), but the means were not.