Recording Conversations with Your Cellphone: with Great Power Comes Potential Legal Liability

In the cellphone age, nearly everyone walks around with a multi-tasking recording device in their pocket or purse, and it comes in handy for many of our modern problems: Your dog suddenly started doing something adorable? Open your video app and start rolling. Need to share that epic burger you just ordered with your foodie friends? There’s an app for that. Want to remember the great plot twist you just thought of for that novel you’ve been working on? Record a voice memo.

Sometimes, though, the need arises to record more serious matters. Many people involved in lawsuits choose to record conversations with their phones, all in the name of preserving evidence that might be relevant in court. People involved in contentious divorce or child custody cases, for example, might try to record a hostile confrontation that occurred during a pickup for visitation. Conversely, others might be worried that an ex-spouse has secretly recorded a conversation and plans to use it against them out of context.

But while everyone has the power to record just about anything with few swipes on their phone, do they have the legal right to do so? If not, what are the possible consequences? Can you even use recorded conversations in court? Consider these important questions before your press record.

Criminal Liability: Can you go to jail just for recording someone’s conversation?

The short answer: Yes. Under Michigan’s Eavesdropping law,[1] it is a felony punishable by up to two years and $2,000 to willfully use any device to eavesdrop on (meaning to overhear, record, amplify, or transmit) a conversation without the consent of all participants in that conversation.[2]It is also a felony for a person to “use or divulge” any information that they know was obtained through illegal eavesdropping.[3]

But there is one important distinction that Michigan courts have recognized: if you are a participant in the conversation, then you do not need permission of other participants to record the conversation (at least not when it comes to the eavesdropping law; there may be other laws that apply, as discussed below).[4] This makes sense given the purposes of the law. The theory is that if you are a participant in the conversation, then other participants at least have a chance to judge your character and determine if you are the kind of person who might relay the conversation to others (either verbally or by making a recording).

The bottom line is that if you use a device, like your cellphone, to record, overhear, amplify, or transmit a conversation that you are not a part of without the permission of all participants, you could face criminal consequences.

Civil Liability: If someone records your private conversation, can you file a lawsuit against them?

The short answer: Yes. The eavesdropping statute allows eavesdropping victims to bring a civil lawsuit against the perpetrator.[5] But the same distinction applies; you cannot sue someone for recording a conversation that they participated in.

Before filing a civil eavesdropping claim, though, consider what if anything there is to gain. The eavesdropping statute permits a judge to issue an injunction prohibiting the perpetrator from further eavesdropping. This may be a valuable remedy if there is a risk that the eavesdropper would otherwise continue eavesdropping on your conversations. The statue also allows a plaintiff to recover actual damages and punitive damages from the wrongdoer. In many cases, actual damages will likely be minimal, and punitive damages are subject to the whims of the judge or jury deciding the case. A result, the cost of litigation may exceed any monetary recovery unless actual damages are significant or the eavesdropper’s conduct was egregious enough to elicit a large punitive award from a jury.

Evidence and Admissibility: Can I use a recorded conversation in court?

Many people are familiar with the exclusionary rule that arises from the Fourth Amendment of the United States Constitution, which provides that if police officers obtain evidence as a result of an illegal search or seizure, then the prosecution is prohibited from using that evidence to support their case. This raises the question:

If a regular civilian obtains evidence by recording a conversation in violation of the eavesdropping statute, is that evidence automatically excluded from court proceedings?

The short answer: No. The exclusionary rule is specifically designed to curb the potentially oppressive power of the government in order to guarantee the protections of the Fourth Amendment, at the expense of excluding potentially valuable evidence from court proceedings. Since the Fourth Amendment only restricts government conduct, the exclusionary rule only applies to evidence obtained as a result of unconstitutional government action. As a result, even if a private citizen breaks the law and records your conversation, that recording is not automatically excluded from court.[6]

So does this mean you can use any recorded conversation in court whenever you want?

The short answer: No. Anything presented in court still needs to comply with the Rules of Evidence, and in many cases recorded conversations will not make the cut. A big reason is the hearsay rule, which says that out of court statements cannot be used to prove the truth of the matter asserted.[7] In other words, you can’t use a recording of your neighbor saying “I use my neighbor’s Wi-Fi” as evidence to prove that he was, in fact, using your Wi-Fi.

But there are many exceptions to the hearsay rule which might allow a recorded conversation into court. Salient among these exceptions is the rule that admissions of a party-opponent are not hearsay.[8] Consequently, if a man records his ex-wife’s conversation with her current husband, the hearsay rule will not prevent the man from using the recording of his ex-wife against her in a child custody case; the ex-wife is a “party-opponent” and her out-of-court statements are not considered hearsay.

Continuing this same example, note that the man’s actions would violate the eavesdropping statute (assuming he didn’t have permission to make the recording) because he was not a participant in the hypothetical conversation. But this violation would not keep the recording out of court. Nevertheless, if a prosecutor wanted to press charges, the man could be subject to criminal liability. And if the ex-wife was so inclined, she could file a civil lawsuit against the man and ask for an injunction and monetary damages.

Other Law: Is the eavesdropping statute the only law you need to worry about before recording all of your conversations?

The short answer: No, don’t hit record just yet. Even if you comply with the eavesdropping statute, there are still other potential pitfalls to be aware of. For instance, wiretapping laws govern the recording and interception of telephone calls and electronic communications, and carry criminal penalties. For inter-state phone calls, the laws of other states will come into play as well. And depending on the means you use to obtain a recording and what you do with the recording once you have it, you risk incurring civil liability for a variety of privacy torts, such as intrusion upon seclusion or public disclosure of private facts.

The safest route is to always get permission from everyone involved before recording a conversation or sharing a recorded conversation with anyone. If that’s not an option, consult with a lawyer who has had an opportunity to consider all of the facts involved in your case.


[1] MCL 750.539 et seq.
[2] MCL 750.539a; MCL 570.539c.
[3] MCL 750.539e.
[4] See Sullivan v. Gray, 117 Mich. App. 476, 324 N.W.2d 58, 59 – 61 (1982).
[5] MCL 750.539h.
[6] See, e.g., Swan v. Bob Maxey Lincoln Mercury, No. 216564, 2001 WL 682371, at *2 n3 (Mich. Ct. App. Apr. 24, 2001)
[7] MRE 802.
[8] MRE 801(d)(2).

This post was written by Jeffrey D. Koelzer of  Varnum LLP © 2017
For more legal analysis go to The National Law Review

Cameras Coming to an Illinois Courtroom Near You: What Are the Rules and What Impact Might They Have

Heyl Royster Law firm

Probably everyone saw portions of the O.J. Simpson and George Zimmerman trials, because each was a high profile case broadcasted on live television. Now, cameras are coming to Illinois courtrooms.

In January 2012, the Illinois Supreme Court approved the use of“extended media coverage” in the courtrooms of judicial circuits that applied for such coverage and received approval. “Extended media coverage” essentially means the use of still cameras, video cameras, and audio recording. Over time, 40 Illinois counties have applied for and received approval to allow extended media coverage in their courtrooms.

Attorneys and clients must familiarize themselves with the applicable rules for extended media coverage, and must consider and prepare for the practical implications if cameras will be present at trial. While such media coverage will likely be limited to criminal cases in most instances, it will inevitably occur in high profile civil cases, including some medical malpractice cases. And, if extended media coverage proves to benefit one side or the other over time, attorneys representing those parties will undoubtedly push for more and more coverage.

Who or What is Considered “Media”?

Historically, the media may have been thought of as newspapers and television stations. Today, however, the term media may include biased blogs, social media, or other similar internet media that does not follow basic standards of journalism. Luckily, Illinois rules operate with a more historical definition of media, thus limiting who may request to cover the trial and hopefully ensuring a certain amount of fairness in reporting. In order to be credentialed under the rules, a media member or organization must be regularly engaged in news gathering and reporting, cover judicial proceedings on a consistent basis, and must regularly follow basic journalistic standards for ethics, accuracy and objectivity.

Request for Extended Media Coverage

Extended media coverage is not allowed as of right. Instead, a credentialed media member must make a written request and have that request granted by the court before extended media coverage is allowed. The request for media coverage must be made at least 14 days before the trial or hearing the media member wishes to cover. Further, the written request must be provided to all attorneys. The 14 day requirement allows the defense time to consider the request and make appropriate objections prior to the trial or hearing.

Objection to Extended Media Coverage

Objections to extended media coverage may be raised by the parties to the lawsuit and may also be raised by witnesses. In either case, a written objection is required, but the timing of the objection can differ for parties and witnesses. If a party, i.e. plaintiff or defendant, wishes to object, his written objection must be filed at least 3 days before the beginning of the trial or hearing. Witnesses must be advised by the attorney presenting their testimony of the right to object, and the witness must file his objection before the beginning of the trial or hearing. The rule also allows the judge to exercise discretion to consider objections that do not comport with the timing requirements.

Once an objection to extended media coverage has been made, the judge may rule on the basis of the written objection alone, or he may choose to hear evidence. At his discretion, the judge may choose to hear evidence from a party, witness, or media coordinator before ruling.

It would be inadvisable to object to media coverage in a trial where no member of the media has made a written request for coverage. Such a pre-emptive motion would be likely to draw media interest where none previously existed.

Technical Requirements and Sharing Equipment

Technical requirements for the cameras and other equipment are provided in the rules. The overall theme of these rules is to ensure that any equipment is not obstructive or disruptive during the trial or hearing. The equipment cannot produce distracting lights or noises during operation. Further, no flashbulbs or other lighting may be used to aid the cameras.

The rules limit the amount of equipment allowed in the courtroom, again with the overall goal of limiting obstructions and distractions. A maximum of two still cameras and two television cameras are allowed, but the judge may choose to limit that to only one still camera and one television camera. Only one audio recording system is permitted. Obviously, if multiple media outlets wish to cover the trial or hearing, they may be required to share the video and audio stream under the rules.

What May be Filmed or Photographed

Most trials and other hearings may be recorded, with exceptions limited mostly to the area of family law. Importantly though, several portions of the trial cannot be recorded. Jury selection cannot be recorded at all, and the media is forbidden from filming or photographing individual jurors or the jury as a whole. This is an important protection provided in the rule, because if a juror is assured that he cannot be recorded, the juror should feel less inclined to consider public opinion in deciding the case. Further, the media may not record interactions between the lawyer and client, between opposing lawyers, or between the judge and the lawyers, i.e. sidebars. And, no materials, papers or exhibits can be recorded unless they are admitted to evidence or shown to the jury. These limitations are obviously important to protect the confidential attorney-client relationship, among other things. Finally, no filming is allowed during recesses or in the public areas or hallways, which provides some known off-camera time.

Live Blogging

A judge also has discretion to allow live blogging during a trial or other proceeding, which does not include visual or audio recording. The most typical example of live blogging would be tweeting, but includes any transmittal in text form of testimony, proceedings, and summaries from the courtroom. Again, only credentialed news media are allowed to engage in live blogging.

The rule allowing for live blogging simply says that it may be allowed upon request. It does not provide a time-period within which the request must be made, and does not provide for objections. However, the decision to allow live blogging is left to the “absolute discretion” of the judge, and therefore, it seems reasonable that a judge would also be vested with the authority to allow objections and consider whatever he deems necessary. In any event, an objection can always be stated on the record, whether or not the judge chooses to consider it.

Required Jury Admonishment and Jury Instruction

Jurors cannot be photographed or filmed, with the apparent goal of minimizing any influence or consideration of public opinion. Carrying this theme further, the rules require the trial judge to read an admonishment to the jury at the beginning of the trial and an instruction to the jury at the conclusion of trial regarding the media coverage. Of course, the admonishment and instruction advise the jury that they should not be influenced by or draw inferences based upon the presence of the media. Also, importantly, the admonishment advises the jury they cannot be photographed or filmed as a group or individually, and it advises the jurors to inform the court if the cameras are distracting or cause an inability to concentrate.

Practical Considerations and Potential Effects

At the outset, the lawyer and client should consider whether they do or do not want cameras in the courtroom. In most cases, the defense would prefer cameras not be present so that the trial is focused exclusively on liability and damages, not extraneous issues. If a request for extended media coverage is made, the lawyer and client should ask themselves why the request is being made, and whether a written objection should be filed. If an objection will be filed, however, it should be based upon specific facts or concerns in that case. The Illinois Supreme Court and local judicial circuit have already determined, from a policy standpoint, that cameras should be allowed if the rules are complied with. Therefore, objections based upon general concerns that cameras may be disruptive or may have a negative impact on the jury are likely to fail.


While most defendants and their lawyers are opposed to cameras in the courtroom, it appears that they are here to stay for the foreseeable future. Given the national trend toward cameras in the courtroom and instantaneous media, it’s hard to imagine that these rules will ever be reversed. Therefore, attorneys and clients will need to carefully consider how to operate within the rules in a way that most favors the presentation of their case.