In today’s digital age, the use of audio recordings in adversarial court proceedings is increasing at a rapid pace. More often than not, a party to these proceedings does not know that their conversation with the other side has been recorded until they hear their words played back in the courtroom. Many people wonder if such “secret” recordings are legal in Michigan, and they turn to the Michigan Eavesdropping Statute as authority for their position that it is not; however, the 6th Circuit Court of Appeals has definitively ruled that “a participant does not violate the Michigan’s eavesdropping statute by recording a conversation without the consent of the other participants.” Fisher v. Perron, Case No. 20-12403 (E.D. Mich. Jan. 12, 2021).
Michigan’s Eavesdropping Statute, MCL §750.539c, provides that “any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties…is guilty of a felony punishable by imprisonment…for not more than 2 years or by a fine of not more than $2,000 or both.” Additionally, eavesdropping is defined in the statute as meaning “to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons…” MCL §750.539a(2), emphasis added.
Based on a careful reading of the statute’s text, as well as case law from Sullivan v. Gray (117 Mich. App. 476 (1982) and Lewis v. Legrow (258 Mich. App. 175 (2003), the 6th Circuit stated that Michigan’s Eavesdropping Statue requires only one-party consent. This means that in any conservation, so long as the recorder gives their consent, the conversation can be recorded. The rationale for this ruling is based on the principle that a person should have the right to protect themselves from what was not said by them during a conversation with another, as opposed to relying on the right of the other party to have what they did say during the conversation be protected.
The Court’s ruling will have a serious impact on many areas of law but will be especially important in domestic relations matters. Often times, we see parents who are, regretfully, fighting in front of their children, submit audio recordings of such incidents in order to gain an upper hand in their pending divorce or custody case. Based on the recent decision of the Appellate Court, there is little the non-recording parent can do to suppress the use of such recordings. Thus, it is imperative that all parents always treat the other parent with respect during their interactions, but that they especially do so during interactions which involve the presence of minor children.
Should you have any questions on how the Fisher ruling may impact your current or future case, please reach out to our knowledgeable staff at Barberi Law and we will be glad to set up a consultation for you.