Secret Recordings at a 209A Hearing in Massachusetts

Recording a conversation without the knowledge of every participant is a crime in Massachusetts under G.L. c. 272, § 99. Playing or handing over a secret recording at a 209A restraining order hearing or to a police officer is a second offense. People involved in domestic disputes often make secret recordings.

A person records an argument, a threat, or a later apology, and then brings the file to a restraining order hearing or hands it to a police officer, expecting the recording to prove the case. The statute is often described as an all-party consent rule.

The statute prohibits the secret recording of any party. This post addresses what happens to a secret recording, and to the person holding it, in a Massachusetts domestic violence case and at the related hearings on 209A abuse prevention orders and 258E harassment prevention orders.

The statute itself, G.L. c. 272, § 99, is treated in full on the secret recordings and the Massachusetts wiretap statute page, including the elements, the penalties, the law enforcement exception, and the suppression rules.

Key Takeaways

• Recording a conversation secretly, without the knowledge of every party, is a felony under G.L. c. 272, § 99. Playing or handing over the recording is a separate offense.
• A judge at a hearing on a 209A restraining order or a 258E harassment prevention order may listen to a secret recording, because the rules of evidence do not strictly apply. The plaintiff must still prove the statutory grounds by a preponderance of the evidence.
• In the criminal case, a recording made by a private person without police involvement is usually not suppressed, while warrantless surveillance inside a home may not be used for any purpose.
• Testimony about a recording at the civil hearing can be used at the criminal trial. Using a recording to pressure a witness can be charged as witness intimidation.

Why Secret Recordings Are Common in Domestic Violence and 209A Restraining Order Cases

Parties in domestic cases often make recordings that expose them to liability, for three reasons.

The parties live or lived together, so conversations occur in private settings where no one announces a recording. The dispute is continuing, so one side has both motive and opportunity to document the other. A judge also decides quickly, often within days, whether to issue a civil order, so a party who arrives with concrete evidence has an advantage.

In a typical domestic case, the recording is made in a home, without the other person’s knowledge, and offered by the person who made it. Under § 99, making such a recording is an interception. Offering the recording is a separate offense.

What Happens at the 209A Restraining Order or 258E Harassment Prevention Order Hearing

A hearing under c. 209A or c. 258E is a civil proceeding and is not bound by the strict rules of evidence. The Supreme Judicial Court has held that “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592 (1995).

A judge therefore has discretion to listen to a recording that would draw sustained objections at a criminal trial. The suppression remedy in § 99 P by its terms belongs to a defendant in a criminal trial.

Two further holdings in Frizado affect how a defendant responds to a recording offered at the hearing. The plaintiff must prove the case for relief by a preponderance of the evidence. A recording that does not prove the statutory grounds therefore does not entitle the plaintiff to the order simply because the judge listened to it.

A defendant also has a general right to cross-examine the witnesses against him, subject to the judge’s discretion to limit cross-examination for good cause. A defendant facing a recording can use cross-examination to establish what the recording leaves out.

The judge at a hearing under c. 209A or c. 258E asks the ordinary evidentiary questions in an informal way. The judge asks who made the recording and on what device, when the recording starts and what preceded it, and whether the recording is complete or an excerpt.

The judge also asks whether the recording has been edited, trimmed, or re-saved, and whether the voices can be identified. Finally, the judge asks whether the file offered is the original or a copy forwarded through a messaging application, which strips the metadata that would answer several of those questions.

Playing or Submitting an Illegal Recording Can Be a Separate Offense

Playing a secretly made recording in open court, or providing it to a police officer, is a disclosure or use of an unlawful interception under G.L. c. 272, § 99 C 3.

The statute classifies disclosure or use as a misdemeanor punishable by up to two years in a jail or house of correction, a fine of up to $5,000, or both. Making the recording is the more serious offense, punishable under § 99 C 1 by up to five years in state prison.

The person recorded can also bring a civil action under § 99 Q for the same conduct. The civil action provides actual damages but not less than liquidated damages of $100 per day of violation or $1,000, whichever is higher, together with punitive damages and attorney’s fees.

The criminal and civil exposure under § 99 is not limited to one side. The person who made and used the recording can face a criminal charge and a civil action. In abuse prevention and harassment prevention cases, that person is as often the party seeking the order as the party opposing it.

Can the Illegal Recording Still Be Used Against a Defendant?

A defendant who learns that the other party recorded him unlawfully often assumes the recording is therefore unusable. In a criminal case, the assumption that an unlawful recording is unusable is frequently wrong.

The Supreme Judicial Court has held that suppression serves no deterrent purpose where a private person made the recording and no police or governmental conduct was involved. Commonwealth v. Santoro, 406 Mass. 421 (1990); Commonwealth v. Rivera, 445 Mass. 119 (2005).

The defendant has standing to move to suppress under § 99 P. The Court has said that the Legislature left the courts to weigh the competing interests in each case, but a judge ordinarily denies suppression when the government was not involved in the recording.

Other rules apply where police participated in the interception. A further rule applies where the surveillance occurred inside a home. Warrantless electronic surveillance of conversations in a private home violates art. 14 of the Massachusetts Declaration of Rights. The resulting recording may not be used for any purpose, including impeachment. Commonwealth v. Fini, 403 Mass. 567 (1988). A participant in the conversation may nonetheless testify from memory.

Different rules govern probation matters, protective-order hearings, civil cases, and federal court. The firm’s guide to secret-recording evidence in different proceedings compares those rules with the Massachusetts criminal-trial rule and also addresses derivative evidence, authentication, hearsay, and completeness.

What a Witness Says About the Recording Can Be Used in the Criminal Case

At a restraining order hearing, the harm to a related criminal case often comes from testimony about a recording, not from the recording itself.

A party who describes making the recording has described conduct that may itself be an offense. A party who describes what the recording contains has given sworn testimony that can be compared against later testimony at a criminal trial.

A defendant who testifies at the civil hearing to explain a recording has also testified under oath before the criminal case is developed, without the protections that a defendant has at a criminal trial. The relationship between silence and testimony at the civil hearing is addressed on the Fifth Amendment at the 209A restraining order hearing page.

Using a Recording to Pressure a Witness

Playing a recording for a reluctant witness, or threatening to release one, can support a charge of intimidation of a witness under G.L. c. 268, § 13B, for which the maximum sentence is substantially longer than for either wiretap offense.

Section 13B covers conduct directed at a witness or potential witness that is intended, or made with reckless disregard, to impede an investigation or proceeding. Witness intimidation prosecutions often involve a recording used to pressure a witness in a domestic case.

What to Do With a Recording That Already Exists

A person who holds a secret recording should not send it, play it, or attach it to an affidavit before counsel has reviewed it. The recording may be admissible against the other party, useless, or evidence of an offense by the person holding it. Often the recording is more than one of those things at once.

A person who consults counsel about a recording should bring the original file rather than a forwarded copy, along with the device the recording was made on if that is possible. The metadata in the original file answers questions about the recording.

The person should also note the date, the setting, who was present, and whether anything was said about recording. The analysis depends on whether the other person knew about the recording. Small facts can answer that question.

There is usually a lawful way to prove the facts that a recording shows. Testimony, messages, medical records, police reports, and the other side’s own filings prove those facts without exposing the person holding the phone to a criminal charge.

Frequently Asked Questions About Secret Recordings in Domestic Cases

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and defends both wiretap charges and the underlying domestic violence cases, most often assault and battery on a family or household member, in which secret recordings appear. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation.

The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A. See also defending 209A restraining order and 258E harassment prevention order violations and the Massachusetts wiretap and secret recording FAQs.