By RICHARD MEEHAN
The Cool Justice Report
Jan. 11, 2008
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
On Monday Roger Clemens revealed at his press conference that he had surreptitiously tape recorded his telephone conversation with his former trainer, and accuser, Brian McNamee. Clemens has been engaged in an all out assault on McNamee in an attempt to counter the accusations leveled in the Mitchell report on steroid use in baseball. McNamee's attorneys have threatened an ethics complaint against Clemens' attorney who was present when Clemens recorded the call and reportedly encouraged the recording.
Ethics aside, the question is: Was it legal fro Clemens to secretly record his phone conversation with another without that person's knowledge or consent. Depending on the jurisdiction in which the taping occurred it may or may not constitute a crime.
Both the federal government and state laws prohibit the interception of telephone conversations without a court order. Interception generally implies that a third party is monitoring and recording a telephone conversation between unknowing participants. This form of electronic eavesdropping has been a major tool of law enforcement since Congress authorized wire tapping in the late 60's. The process through which a legal wiretap is obtained is rigorous and courts place strict limitations on the intrusion. Wiretap laws are grounded in respect for an individual's expectation of privacy when engaged in a private conversation.
By contrast, however, federal law and the law in 38 states, does not prohibit one party, secret recording of a phone conversation. The theory being that there is not an expectation of privacy since the party being recorded is willingly participating in a discussion that the recording party is at liberty to share with others.
Connecticut is one of 12 states that do not permit such secret recordings. Both parties to a conversation must consent if a call is to be recorded. Thus, when you contact a merchant there is generally an announcement that the call is being recorded for training or quality control purposes. In reality it is a warning that the call is being recorded, thus giving the caller the option of not participating in the call since it is being taped.
In Connecticut it is a five year felony to unlawfully engage in wiretapping or mechanical overhearing of a conversation under Connecticut General Statute sec. 53a-189. In addition to criminal penalties our law also provides civil sanctions. Sec. 52-570d states: "Action for illegal recording of private telephonic communications. (a) No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use."
Individuals who violate this civil provision are liable for damages, including attorney's fees. Exceptions to this prohibition exist for law enforcement and under several other very limited circumstances. Monitoring devices are easily and legally obtained at most electronic retail outlets. The possession of a device is not itself a crime since it can be employed legally if both parties consent to the recording.
Thus, had Roger Clemens resided here in Connecticut rather than in Houston his actions would have exposed him and his attorney to felony prosecution and civil damages.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com