Theoretical Custody Case

Audio can be a key piece of evidence in building a case, but obtaining audio that is both clear and admissible in court can be tricky. Every state is different in terms of audio admissibility in court. Federal law (18 U.S.C. § 2511) requires one-party consent, which means that you can legally record a conversation as long as you are a part of it. However, if you are not party to the conversation, at least one person must consent to being recorded in order for the recording to be legal. Most states have similar laws to the federal law, however, some states have enacted two-party consent laws. This means that all parties present must consent to being recorded, except in the case that all parties reasonably should have expected to be recorded. 

Let’s examine a custody battle and how audio evidence may impact the trajectory of the case. We will assume this case is based in Oregon, where in-person conversations must be consented to by both parties, unless it is over the phone or inside of their home. Keep in mind that every state has different laws regarding audio recording, and they are subject to change. 

The wife’s legal team is building a case against the husband for emotional abuse towards the wife, making him unfit for custody. They perform a logical extraction to access text messages from the husband to the wife that could be painted in a negative light. The husband’s legal team is using similar tactics, but in the reverse. They want to prove that the wife has been emotionally abusive against the husband. The husband had started recording conversations between himself and the wife once he began to think they would eventually get into a custody battle. The conversations took place in their home, which makes the recordings admissible in court. However, much of the audio is muddled and there is background noise from the neighbor’s leaf blower and the kids running around the house. Digital forensics experts are able to enhance the audio and isolate their conversations from the background noise, revealing audio that paints the wife in a different light than her legal team presented. 

While audio evidence may not always be a deciding factor in court, it can be a key piece of evidence in building a case or prove to be exculpatory.