BarkingDogs.net

The material on this page was contributed by Geordie Duckler, LLC - Attorney at Law,
in an interview conducted by the Barking Dogs Webmaster in May of 2006

Go to the index for the Geordie Duckler interview

On the Use of Tape Recorders for Evidence Gathering and as a Means of Self Protection

Geordie Duckler:
In a court case it often comes down to one person's word against another. It's your basic he said, she said sort of thing. But the jury is entitled to listen to one guy and then listen to the other guy and then just choose who they think is telling the truth. That's what juries are for. They are going to weigh the testimony and choose who they like.

Barking Dogs Webmaster:
I'm sure that's true. But I would think that if you made it a point to audio-tape the encounter or, also, in addition to whatever else you do, maybe send some certified letters, or have a neutral party go with you when you one time to visit the dog owner, that you'd be better off. Because I would think that the more proof you could accumulate, the stronger your position would be.

Geordie Duckler:
Well, let me give you one warning about that. I love the idea of the person coming over with you. You know, your own spouse or a family member or a buddy, but I'm a little leery about the taping. I know that in Oregon and, at least, in a number of other states, if you tape record someone without them knowing it in a face to face conversation, usually that is considered a crime. So you don't want to do that.

However, there is no reasonable expectation of privacy over the telephone. So when you call someone on the phone, and you don't tell them that you have a tape recorder going, you're not committing a crime, and they can't complain that the conversation was taped, because they were never really sure who else might have been listening. However, in Oregon, as in many other states, in face to face conversation, legally, you have to say to them, "I have a tape recorder, and I'm taping this conversation." Now, you don't need their consent. You don't need for them to say, "Okay, I give you my approval." But you do need to inform them that you are doing it. Now if you don't do that, that could be considered an invasion of privacy and you could be in trouble.

So, if you are going over to your neighbor's house, and you want to make sure that, later, you can prove that you went there, it's probably not going to be the greatest idea for you to bring along a tape recorder and say, "Hey, I'm coming over to talk to you and I'd like to tape our conversation," because you'll probably get the door slammed in your face. So probably, just bringing another person along with you is a much better idea.

Barking Dogs Webmaster:
Well, I have to tell you that the last time I went over to a neighbor's house to talk to them about their barking dogs, I spoke just three or four very polite sentences, asking them to take responsibility for the animals. They responded by immediately telphoning the local police with a fantasy version of the event in which I supposedly threatened acts of violence. Now fortunately, I had recorded the conversation on a small tape recorder tucked into my shirt pocket.

In my experience that kind of outrageous falsehood is typical of what you get from recalcitrant dog owners when you stand up for yourself and press the issue. So, based on my experience, I figure that, even if it's illegal, at least I have the tape. So I can prove what was actually said.

Geordie Duckler:
So it's for your own protection then?

Barking Dogs Webmaster:
Yes, absolutely. In this case, the cops were sharp enough to know they were making it up. But if they had believed them, I would have been very glad that I had that tape.

Geordie Duckler:
Now that's interesting, because it brings up some evidence questions. Now first, you can tape all sorts of things. And what was said on the tape may be of interest to a number of people. But in terms of the evidence rules, very often tape recorded conversations are inadmissible as evidence. So even though you taped it, and you know they said X and they know they said X and you have it on tape that they said X, sometimes an evidence rule will kick in and say that you're not allowed to play that tape for the jury.

The only way that you usually can get those tapes in as evidence is when you are going to use them to impeach someone. So what happens is that you put the people on the stand and say, "Did I come over to your house and ask you X?" And they deny that you did in fact contact them, then, you can say, "Well I think you just lied under oath," and I would like to play a tape to show that, in fact, you did.

However, you can't just play the tape as if it's evidence. Do you see the difference?

Barking Dogs Webmaster:
Yes, actually I do. So I think that it might just be a good idea to record your conversations anyway and just keep quiet about it. Then, if it goes to court and they get up on the stand and lie - and, of course - they always lie. Then - you've got them.

Geordie Duckler:
Exactly. It's not a bad idea to record simply so that, if somebody lies later on, then you have the proof of the lie. But I wouldn't record them with the idea in mind that you could later use that as affirmative evidence. It is impeachment evidence is all.

Barking Dogs Webmaster:
Which could be extremely valuable if you go to court.

Geordie Duckler:
Of course, it is that much better if you record them on the phone. Because, at least in a great many places, the same rules of privacy don't apply.

Go to the index for the Geordie Duckler interview

This page from the Duckler Interview is part of Section Three:
the Law section of barkingdogs.net