In Maryland (a consent state), a suspect had a secret recording device. When the interview began he asked is this conversation being recorded. The officer said yes, he said so we both consent to being recorded, the officer said, it appears so.
The officer lied constantly during the interview. The suspect attorney used the secret recording to prove they altered the state’s recording. The Judge said, we can’t use your recording because of two party consent.
The attorney played back the start of the recording with the officer saying yes he consented to being recorded. The DA quickly asked to dismiss the charges, the suspects attorny requested for the dismiss with prejudice and for charges to be filed against the officer. The officer was charged and the civil case the defenant received a payout.
It certainly CAN be. If you live in a “one party consent” state, and your prisoner manages to record some law enforcement shenanigans, you might end up like Christopher Perino, former NYPD detective.
Chris missed that some small MP3 players can record. And so he was interrogating Erik Crespo using the usual tactics – not just the ‘permitted’ stuff but extending into gross misrepresentations of the law as the Supreme Court forbade in Frazier v Cupp. Given that the interrogation wasn’t legit, the NYPD wiped away all record of it. Erik, on the other hand, had reached into his pocket and hit the ‘record’ button.
They went to trial. Perino did the expected and just lied his happy ass off on the stand under oath during cross-examination. Now, you might think a snappy detective or DA would start to question why the defense keeps hammering ‘Did you interrogate my client’ ‘How many times did he ask for a lawyer’ but no, they kept denying that any interrogation ever took place, that no recordings were ever destroyed because there weren’t any and so on.
But during cross, you have this magic ability to introduce evidence that’s not covered by reciprocal discovery, since the “surprise evidence” isn’t aimed at establishing guilt or innocence of the defendant, but is aimed at the credibility of the witness being cross examined. So, out of the blue, and after Former Detective Chris Perino had directly lied over a dozen times, the defense plays the recording for the court.
Hilarity ensues.
Since Perino was one of the ‘star witnesses’, a sort of linchpin of the case, there was this huge explosion as the DA’s case fell apart right in front of God and everybody, to the delight of the press. Here was a cop who had just lied his everloving ass off, not just once, but a dozen times, on the record. Since this was before ‘cameras everywhere,’ there was a huge outcry at the very CONCEPT that cops might just get on the stand every day and make up whatever bullshit they might see as assuring a conviction.
Then the cop union starting blatting that of COURSE he didn’t lie, he just ‘misremembered,’ Perino tried the “Was that wrong? Should I not have done that?” defense. The DA had to drop most of the charges as Perino had blown up the “confession” he had supposedly gotten single handed and instead of being tried for murder Crespo ended up pleading to something like ‘reckless discharge of a firearm.’
Perino ended up being convicted of three or four felony counts of perjury, but instead of the sentence you or I would have gotten, he got 4 months. Still, he would never wear a badge again.
In Indiana an interrogation of a suspect is not admissible in court unless it was recorded by the police. The recording must be offered as evidence. So I suppose if you aren’t under arrest, you could record in your phone. (If you are under arrest you won’t have your phone in your possession). But I don’t see much point. If the cops “accidentally” forget to turn on the recorder, then anything you say cannot be introduced anyway because it will be excluded.
