Illegal electronic evidence can be voice or video recordings, phone recordings, intercepted text messages or e-mails or screen shots captured by spyware. This thoughtful 2005 Florida case describes what a trial court should do when faced with illegal electronic evidence.
Click here to read O’Brien v. O’Brien, 899 So.2d 1133 (Fla. 5th DCA 2005), which was a divorce case. When marital discord erupted between the Husband and the Wife, the Wife secretly installed a spyware program called Spector on the Husband’s computer. It is undisputed that the Husband engaged in private on-line chats with another woman while playing Yahoo Dominoes on his computer. The Spector spyware secretly took snapshots of what appeared on the computer screen, and the frequency of these snapshots allowed Spector to capture and record all chat conversations, instant messages, e-mails sent and received, and the websites visited by the user of the computer. When the Husband discovered the Wife’s clandestine attempt to monitor and record his conversations with his Dominoes partner, the Husband uninstalled the Spector software and filed a Motion for Temporary Injunction, which was subsequently granted, to prevent the Wife from disclosing the communications. Thereafter, the Husband requested and received a permanent injunction to prevent the Wife’s disclosure of the communications and to prevent her from engaging in this activity in the future. The latter motion also requested that the trial court preclude introduction of the communications into evidence in the divorce proceeding. This request was also granted. The trial court, without considering the communications, entered a final judgment of dissolution of marriage.
The trial court’s ruling that the illegally obtained communications should be excluded from evidence was upheld even though the Federal Wiretap Act and the identical Florida statute do not exclude electronic evidence illegally obtained.
Texas courts have held that illegally obtained phone recordings are inadmissible. In Collins v. Collins, 904 S.W.2d 792, 799 (Tex. App. – Houston [1st Dist.] 1995, writ denied), the court of appeals held that tape recordings the husband made between his wife and their child, his wife and her boyfriend and his wife and her lawyer and the transcripts of the conversations should not have been admitted into evidence or given to mental health experts for them to consider. The custody award to the husband based in part on the tapes was reversed. (Collins did not address Tex. Code Crim. Proc. 18.20 § 2(a) quoted above). The court in Collins stated:
“Because the tapes were illegally obtained under the federal and state statutes, the trial court should not have admitted them into evidence on the issue of custody. The tape-recorded conversations were not admissible because the criminal statute dealing with the use of the intercepted communications criminalizes their dissemination, and the civil statute provides a method to prevent dissemination. To permit such evidence to be introduced at trial when it is illegal to disseminate it would make the court a partner to the illegal conduct the statute seeks to proscribe.”
This is the proper procedure once illegal electronic evidence is discovered:
- Obtain a TRO and temporary injunction to forbid the disclosure and use of the evidence.
- Conduct discovery on how the electronic evidence was obtained, who was involved and whether the evidence has already been disclosed or used.
- Obtain a ruling that the illegally obtained electronic evidence may not be used in evidence and consider if any other evidence that is “the fruit of the poisonous tree” (obtained by use of the illegal evidence) should be excluded. Ethical opposing counsel may agree that the illegal evidence should be excluded.
- File a separate lawsuit or join to the divorce or custody case tort claims against those who illegally intercepted, used or disclosed the electronic evidence. The tort case may have to be severed from the custody or divorce case and potentially tried first if there is still a dispute over the legality of the evidence.