McDaniel v. McDaniel – Phone Call Admitted Into Evidence Overturned – Tennessee Wiretapping Laws

Husband filed for divorce in 2007, and he alleged that the Wife was guilty of inappropriate marital conduct or, in the alternative, that the parties had irreconcilable differences. The parties had three (3) children at the time, and the Wife also had three (3) children from a prior marriage. The Wife denied inappropriate conduct, and she counter-filed, alleging that the Husband was guilty of adultery and cruel and inhuman treatment.

1308190_96199875During the trial, the Wife was asked a series of questions about whether she had made certain comments to one of her children about her Husband (this was the Husband’s stepchild). The Mother was asked if she called her ex-Husband a specific vulgar name, whether she called the Husband a specific vulgar name, whether she stated that she was trying to have the Husband thrown in jail, whether she stated that having the Husband thrown in jail was the “only hope” she had for winning the divorce case, whether she stated that the judge did not believe her testimony about her cheating, and whether she stated that her “last resort” was to kill her Husband and exactly how she would kill him.

The Mother testified that she did not even talk about the divorce case in that recording. It turns out, each of those statements had been made, and they had been recorded by the Husband.

In this divorce case, the Husband’s recorded telephone conversation with the Wife and her son was inadmissible because the recording violated the state of Tennessee’s wiretapping statute, which prohibits the intentional interception of telephone conversations. Neither the Wife nor the son knew that the conversation was being recorded.

The trial court found that the recording was made unintentionally, as it was recorded on a line where a machine was set to record all business calls, and it was, therefore, admissible.

The specific statute at issue here is Tenn. Code Ann. §39-13-601, which addresses “Wiretapping and electronic surveillance; prohibited activities”. It states:

(a)(1) Except as otherwise specifically provided in §§39-13-601 — 39-13-603 and title 40, chapter 6, part 3, a person commits an offense who:

(A) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(B) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

(i) The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

(ii) The device transmits communications by radio, or interferes with the transmission of the communication;

The trial judge found that it was not “intentional” and it was not an “interception”.

The trial court admitted the recording, and the Mother appealed, arguing that it was inadmissible.

There is no violation of either state or federal law if one party to a conversation consents to the recording. Tennessee statutes DO prohibit the intentional taping of a conversation when neither party to that conversation consents to the recording.

The Court of Appeals found that the Hiltons (parties who recorded the business line) may not have intended to record that specific conversation, but they intended to record all conversations, which would include the conversation at issue in this case.

The Court of Appeals affirmed the granting of a divorce to the Husband, but the tape recorded conversation should not have been admitted.

McDaniel v. McDaniel – E2009-00447-COA-R3-CV

Attorney comments: Please make sure you know what Tennessee wiretapping laws say before recording any conversations. If you illegally record a conversation, not only could you face criminal charges, but your recording will not be admissible in any divorce/custody or other court case. If you have questions about what is allowed, discuss your concerns with an attorney.

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