I am not a fan of recording witness interviews, mostly because I find that it creates a chilling effect that makes witnesses reluctant to tell the whole truth. Of course, I am often asked whether a witness in an investigation can secretly record his or her own interview without breaking the law. The answer to this question depends on the state in which the interview occurs.
Under federal law, only one person in the interview need be aware that the conversation is being recorded. The same is true for most states, 38 to be exact, including Texas. These states are commonly referred to as “one-party” states.
However, if the interview is taking place in California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, or Washington, generally all parties to the conversation must be informed that the conversation is being recorded in order to comply with local eavesdropping and/or wiretapping laws. These jurisdictions are often called “two-party” states, though it is important to note that if a conversation occurring in one of these states involves more than two people, everyone must be informed it is being recorded.
Regardless, it is now easier than ever to secretly record conversations. A quick search in any app store will turn up all sorts of programs that allow individuals to record people on smart phones without their knowledge, all of which is perfectly legal in one-party states. And even in two-party states, witnesses may not know or care about the law. Thus, my advice to investigators is to always assume their conversations are being recorded.
I also recommend that investigators ask at the beginning of every interview whether the witness is recording. If the witness admits she is recording, the investigator can attempt to persuade her not to do so or, failing that, can at least set up a recording of his own. And if the witness claims she is not recording when she really is, well, that goes directly to the witness’s propensity for honesty, which can come in handy when evaluating the veracity of the rest of her testimony.
If you are interested in learning more, I offer live, hands-on training to both individual professionals and organizations that are responsible for conducting internal investigations, including my upcoming webinar Conducting Effective Internal Investigations in September.