When it comes to the world of law and order, two things should be considered loaded and dangerous at all times: firearms and microphones. In criminal prosecution and defense, a “smoking gun” can mean the difference between a long stay at the Big House, or going to your own house after trial. I compare guns and microphones in this instance, because if you are in a situation where on is present – you have to consider it armed and dangerous.

Not all instances of recordings are admissible. However, it does depend on the instance. A recent situation has brought the power of a microphone to light. Real estate Millionaire and the subject of a documentary, Robert Durst, was in a bathroom and apparently did not realize his microphone was still on.RCACrown092911

He spoke to himself, and many believe, he had outed himself – confessing to have murdered the people he had long been suspected of killing. Whether this was an admission of guilt or not, he was brought up on charges.

This is not to highlight whether or not an individual will be found guilty based on a recording. This is to showcase what happens when one is caught by a microphone without realizing it, or ignoring the fact that microphones and listening devices are present. Those who hear the recording now may have doubt or suspicion. Now a charge is possible, whether or not the recording turns out to be admissible.

In the event that a recording in regards to a possible criminal case is overheard, whether or not a conviction can be made is irrelevant. A charge may be made, and therefore, the possibility for the admission of new evidence may be possible. In these cases, it becomes more difficult for a defense attorney – not impossible, but more difficult. To ignore the fact that a microphone or recording device may be present is a mistake on anyone’s part.

If an individual is charged with a crime and arrested, the officers involved may request to interview you, and have you wave your right to an attorney. In these instances, a recording device would most likely be present. Anything that is said will be used against that individual in court if that right is waived. This is why you must always have an attorney present during any questioning. However, when rights are read by an arresting officer, they should be followed. You have the right to remain silent. Therefore, remain silent.

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Dan Exner, J.D.

Family Law Attorney

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