United States: A Wake-Up Call For Attorneys On Using Recorded Conversations

Originally published by Law360, New York (August 18, 2015)

The recent arrests of two criminal defense lawyers in Pennsylvania provide a dramatic illustration of the perils posed when a lawyer attempts to use recorded conversations made without the consent of all parties. In Pennsylvania and 10 other states around the country that do not follow the "one-party consent" rule for legally recording conversations,1 lawyers have always been wise to proceed cautiously before seeking to use recordings. But the recent cases exemplify the extreme consequences that can flow from trying to use increasingly common cellphone technology on a client's behalf.

The two Pennsylvania cases, Commonwealth of Pennsylvania v. Booker2 and Commonwealth of Pennsylvania v. Benyo,3 merit careful consideration for a variety of reasons. First, the lawyers were charged even though they neither made the tapes nor (at least based on the criminal complaints against them) were they complicit in their creation. Second, in both cases, the lawyers themselves disclosed the existence of the tapes to law enforcement in an attempt to induce favorable treatment for their clients. Third, in each case, the complaining witnesses against the attorneys were the same law enforcement officers who were pressing the underlying criminal cases against the attorneys' clients. Finally, the prosecutions may squarely confront the scope of a 2014 Pennsylvania Supreme Court decision, which held that conversations intercepted via telephone fall outside the two-party consent statute.

Stanley Booker was arrested on July 27, 2015, on a criminal complaint. The complaint, filed by State Trooper Joseph Morris, alleges that on March 28, 2015, Booker appeared as counsel at a preliminary hearing in a criminal case against his client, Deshaun Emery (Emery was charged with armed robbery and pistol-whipping a woman named Kimberly Taylor). Booker is alleged to have approached Morris and the prosecutor before the hearing and told them he had a tape recording "you need to listen to." He then played a recording on his cellphone between the alleged victim, Taylor, and a third party, Tamara Bucher. On the tape, Taylor denies that Emery ever pistol-whipped her. After playing the tape, Booker asked the State to drop the case against Emery, failing which he would seek to have all charges dismissed.

During the preliminary hearing later that morning, Booker cross-examined Morris. During the examination, in the presence of the judge and others in the courtroom, Booker played a portion of the same tape. After the hearing, the prosecutor and Morris confronted Booker claiming that the tape on his cellphone was obtained in violation of the Pennsylvania Wire, Electronic or Oral Communication Law (18 Pa C.S.A. Section 5701 et seq.) because it had been recorded without Taylor's knowledge or consent. Booker allegedly admitted that he knew Bucher had not obtained Taylor's consent to tape their phone call, but urged that it should be heard because it went to the alleged victim's credibility.

Gerald Benyo was arrested on the same day as Booker.4 Benyo's client, Kendraneshia Barnett, was carrying a set of brass knuckles in her purse when she went through a metal detector at the courthouse. The police deputy (Erica Bacon) confiscated the weapon, but later the same day gave it to an employee of the public defender (Dionna Steele), who returned it to Barnett. A few days later, for reasons that are not identified, Barnett recorded a telephone call with Steele using her cellphone.

Barnett and Benyo later met with a state trooper. In an apparent attempt to gain favor by assisting in a prosecution against Bacon and Steele, Barnett provided the trooper with her cellphone, which contained text messages with Steele and the recorded conversation with Steele. The following month, Benyo is alleged to have filed a transcript of the taped conversation in a motion for an evidentiary hearing in an unrelated drug case against Barnett. The motion included a verification by Barnett that she knew that her possession of the brass knuckles and her taping of the call with Steele could subject her to criminal liability.

Benyo was charged with violating the two-party consent statute for attaching the transcript of the recorded conversation. Barnett, Bacon and Steele were also charged with various crimes.

18 Pa. C.S.A. § 5703(2) makes it a crime to "intentionally disclose or endeavor[] to disclose" the contents of any wire, electronic or oral communication, or evidence derived therefrom, when the person knows, or has reason to know, that not all parties to the communication consented to its interception. Section 3 of the statute is the same, but criminalizes the use or attempted use of intercepted information. The attorneys were charged under both prongs of the statute.

It appears clear that both Booker and Benyo were aware of the statute, but believed that their attempted use of the recordings would not subject them to prosecution. Indeed, in both cases, law enforcement would have been unaware of the recorded conversations but for the attorneys' affirmative disclosure of the information to try to benefit their clients. These decisions wound up backfiring against both the attorney and the recording party.

The attorneys' arrests raise thorny questions about what a prudent practitioner in a two-party consent state should do when the lawyer is presented with a recorded conversation that does not, on its face, indicate that all participants have consented. Even listening to the tape could be problematic since a prosecutor could later contend that the attorney somehow "disclosed" or "used" — or tried to disclose or use — statements made in the recording, or gathered evidence based on the contents of the communication.5 Although it is true that an attorney may be able to argue the attorney did not "know" that the other party to the call had not consented, an attorney who fails to make a diligent inquiry into the circumstances underlying the recording could conceivably be accused of conscious avoidance of the illegality.

It is a natural instinct for a zealous advocate, upon receiving clear, recorded evidence undermining a claim against the lawyer's client, to want to use that evidence in pursuit of a just result. See Pa. R. Prof. Conduct 1.1. Yet, in Pennsylvania, a lawyer told of an exculpatory tape recording will face an overpowering conflict in the wake of Booker and Benyo: Either refrain from using the helpful tape or risk personal criminal liability for disclosing to an adversary (or anyone else) about the tape's contents. Since Booker and Benyo involved both private and public airing of the recorded communications, it is hard to know whether a defense lawyer who makes only private use of the communication would be prosecuted, but the risk obviously exists inasmuch as both complaints reference private as well as public use.

Pennsylvania lawyers will also be watching closely to see how these prosecutions will be affected by a 2014 decision of the Pennsylvania Supreme Court in Commonwealth v. Spence, 91 A.3d 44, 47 (Pa. 2014). In Spence, a police officer listened in on a cellphone call between an arrestee and his alleged drug dealer (Spence), who incriminated himself. Spence moved to suppress evidence of the content of the call on the ground that it was illegally intercepted because Spence had not consented to the trooper's listening in. The Supreme Court denied the motion, finding that the statute required interception by "the use of an electronic, mechanical or other device" — a definition that it found did not include a telephone. Although the case did not involve a cellphone's recording function, the court appeared to suggest that the holding applied to anything a phone can do: "[T]he language of the statute does not state that it is the use to which the telephone is being put which determines if it is considered a device." Id. at 47.

An expansive reading of Spence would result in the dismissal of both the Booker and Benyo prosecutions (as well as the cases against Bucher, Barnett and other defendants in Pennsylvania who recorded through their cellphones). It would also rip a gigantic hole in the two-party consent statute because technology allowing one to record via a smartphone is both widely available and easy to use. However, in a December 2014 civil case, Talbot Todd Smith v. Unilife Corp., 72 F.Supp3d 568, 572 (E.D.Pa. 2014), the court sustained a pleading that alleged recording by cellphone, finding that there was "ground to question whether the holding in Spence would apply to the use of a non-telephone application [such as the voice memo application] contained on a smartphone to intercept a conversation."

Another recent case declined to apply Spence to text messages sent via an iPad, holding that an iPad is not "the functional equivalent of a telephone" under the statute, even though it can "perform functions similar or identical to a modern cellular phone ... [A]t this time, the technologies in question remain different not only by degree, but also in kind." Commonwealth v. Diego, No. 1989 MDA 2014, 2015 WL 3868639 (Pa. Supt. Ct. 2015).

Obviously, it remains to be seen whether Spence will avail Booker and Benyo in defeating the claims against them. However, in the interim, their arrests and prosecutions should provide a wake-up call for attorneys in Pennsylvania (and other states with similar statutes) who might be tempted to accept, listen to and use a recorded conversations obtained without explicit evidence that all parties have consented to its recording.

Previously published by Law360

Footnotes

1. A "one-party consent state" is one in which a conversation is legally recorded so long as any party to the conversation consents to the recording. States requiring two-party consent in at least some circumstances are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire and Washington.

2. MJ-3503-CR-0000233-2015 (Mag. Dist. Ct. Mercer Co.)

3. MJ-36202-CR-0000181-2015 (Mag. Dist. Ct. Beaver Co.)

4. Both Booker and Benyo were charged by the Pennsylvania Attorney General's office. The Attorney General's Office subsequently withdrew the charge against Benyo, but indicated its intention to re-file.

5. It is an open question whether a lawyer risks criminal charges by playing the tape for co-counsel even if the playing is for the purposes of determining whether the recording could be used.

Tyler Maulsby, an associate at the firm, assisted with the preparation of this article.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.