In a recent Illinois Bar Journal article written by William Hanson, Mr. Hanson lays out the current state of the law in Illinois on audio and video recordings. Many times, clients and prospects of Kreisman Law Offices will announce that related to a particular set of facts, they have a recording on their telephone or on their home recording device of a one-sided telephone message or conversation. In most cases, the client is enthused about admissions or concessions that the recording demonstrates.
However, as Mr. Hanson clearly points out, Illinois has an eavesdropping law that has been examined by two Illinois Supreme Court cases, namely People v. Clark, 2014 IL 115776 and People v. Melongo, 2014 IL 114852.
In both of those Supreme Court opinions, the court found that the previous Illinois eavesdropping law was overbroad and unconstitutional which laid the groundwork for changing the eavesdropping statute to comply with the U.S. Constitution, the Constitution’s First Amendment.
The impetus of clients and prospects hanging on to video or audio recordings is that they believe rightfully that it’s important to preserve evidence. These statement or videos may contain admissions, statements against interest and show motive and intent in some cases.
However, the admissibility of an audio recording whether it’s civil or criminal must comply with Illinois law. The Illinois and U.S. Constitutions also play an important role here because privacy, free speech and due process are crucial.
As to the Clark and Melongo cases, the Illinois legislature after these rulings adopted Illinois’ current eavesdropping statute. The current state of the law, 720 ILCS 5/14-1 et seq., requires consent from the other party and whether there was a reasonable expectation of privacy.
Under the Illinois Eavesdropping Act, the law provides that, regardless of whether one is a party to a conversation, a person commits illegal eaves- dropping when he or she knowingly and intentionally uses an eaves- dropping device in a surreptitious manner for the purpose of overhearing, transmitting, or recording all or any part of any private conversation unless he or she does so with a consent of all of the parties to the private conversation. 720 ILCS 5/14-2(a)(1)(2).
When the eavesdropping statute has been violated, the evidence obtained is not admissible in any civil or criminal trial or administrative, legislative, or grand jury proceeding. Id. at ¶ 5/14-5.
The only exception to this statute that allows for admissibility is when there has been an eavesdropping violation that is part of a criminal trial or grand jury proceeding or the defendant is charged with violating the eavesdropping statute. The statute does not include any reference to admissibility of a recording made in violation of the statute where a party seeks to use the recording solely for impeachment purposes.
In any lawsuit, if the individual who was surreptitiously recorded, the person may seek to exclude the recording on any basis other than lack of authenticity if he or she claims a lack of consent to the making of the recording. Actual, expressed consent is no longer required when there is no expectation of privacy under the two Illinois Supreme Court cases cited above; Clark and Melongo.
Both the prior and current Illinois eavesdropping statutes are commonly referred to as “two party” or “all party” consent statutes. Actual or expressed consent is only required where the actor or speaker has a reasonable expectation of privacy. If not, consent is effectively implied. When there is no reasonable expectation of privacy, the making or recording has not violated the statute. All of this is important given the proliferation of smart phone and advancing technology that makes recording and videotaping of events and conversations all the more prevalent.
As far as admissibility, it is important to know:
- Who made the recording?
- Who else was involved in the decision to record?
- Who was the subject of the recording?
- Whose voices are heard on the recording?
- When was the recording made?
- Where was it made?
- For what purposes were the recordings made?
- How was the recording made?
- Since the making of the recording, who had custody of the recording and for how long and for whom it was acquired?
- Who is the recording being offered in evidence, also being offered in its original median? If not, why not?
- Could the recording have been altered?
- Is there any evidence that it might have been altered?
These were the bullet points set forth in the William Hanson article found in the November 2019 Illinois Bar Journal, Volume 107.
Mr. Hanson’s article is instructive and a valuable tool for what will continue to evolve in terms of admissibility of evidence of recorded audio and videotape.
If you or a family member has been injured or died as a result of the carelessness or negligence of another, Robert D. Kreisman of Kreisman Law Offices is prepared to handle your case. Robert Kreisman has more than 40 years of experience handling Illinois jury trials.
With our years of experience in trying and settling catastrophic injury cases, medical malpractice cases, nursing abuse cases and birth trauma injury lawsuits, Kreisman Law Offices provides the best possible services to our clients and has achieved unsurpassed results. Our service is unmatched. Please call us 24 hours a day at (312) 346-0045 or toll free at (800) 583-8002 for a free and immediate consultation or complete a contact form online on our website.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.