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Voice Recordings and Surveillance Evidence under Georgia Law

Recordings of Party to Party Conversations

Under Georgia law, specifically O.C.G.A. § 16-11-66, you can record a conversation in Georgia if you are a party to the conversation without the knowledge or consent of the other party. This can be either on the phone or in any public or private place. The recordings will likely be admissible evidence at any hearing. The problem is one spouse can provoke an argument then turn on a recorder. Both spouses should be mindful that a recording could be running any time they are speaking to the other spouse. Insults and profanity can have a significant negative impact if played before a judge or jury.

You cannot, however, record a conversation if you are not a party, such as the situation where you record your spouse in a conversation with a boyfriend or girlfriend. See, Middleton v. Middleton, 259 Ga. 41, 376 S.E.2d 368 (1989). In this case, the husband secured a recording of the wife discussing her affair with her boyfriend. Because the husband was not a party to the conversation, the recording was inadmissible for direct evidence of the affair. However, the court held open the question of whether the tape could have been used on cross examination for impeachment purposes.

Audio, Video or Photographic Surveillance

There has been some confusion in Georgia law regarding whether a spouse can make a surreptitious audio or video recording, or secure photographs of the other, in the marital residence or another private place that concerns activities that are not party to party conversations. In 2013, the Supreme Court answered the question in the negative. See, Rutter v. Rutter, 294 Ga. 1 (2013) (The Supreme Court overturned the prior Court of Appeals ruling and held there is no marital residence exception to the general rule found in O.C.G.A. section 16-11-62 that a party may not secretly observe, photograph or record the activities of another in a private place.)

Caution on Making Surveillance Recordings and Photographs

Any spouse seeking to engage in the surveillance of the other should be cautious. Any any private investigator employed by the spouse should be equally cautions. There is both civil and criminal exposure for invasion of privacy if a spouse makes a surreptitious recording of the activity of the other that does not concern party to party conversations in any place where there is a reasonable expectation of privacy. You should never surreptitiously record or photograph or ask your private investigator to record or photograph your spouse in a private place. And any recording or photograph you make of your spouse should NEVER be disseminated. It should be kept strictly confidential, seen or heard only by your attorney, and used only in court.

O.C.G.A. section 16-11-62 provides:

  • (1) Any person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place;
  • (2) Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view; provided, however, that it shall not be unlawful:
    • (A) To use any device to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or any other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated, provided that such equipment shall not be used while the prisoner is discussing his or her case with his or her attorney; or
    • (B) For an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy;
  • (3) Any person to go on or about the premises of another or any private place, except as otherwise provided by law, for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities;
  • (4) Any person intentionally and secretly to intercept by the use of any device, instrument, or apparatus the contents of a message sent by telephone, telegraph, letter, or by any other means of private communication;
  • (5) Any person to divulge to any unauthorized person or authority the content or substance of any private message intercepted lawfully in the manner provided for in Code Section 16-11-65;
  • (6) Any person to sell, give, or distribute, without legal authority, to any person or entity any photograph, videotape, or record, or copies thereof, of the activities of another which occur in any private place and out of public view without the consent of all persons observed; or
  • (7) Any person to commit any other acts of a nature similar to those set out in paragraphs (1) through (6) of this Code section which invade the privacy of another.

Ga. Code Ann. § 16-11-62 (West)

If you or your private investigator obtained information in violation of this section, it will be, at a minimum, inadmissible. There may also be criminal sanctions and exposure to civil liability under an invasion of privacy claim.

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