The Washington State Supreme Court recently ruled that an accidental recording of a domestic violence incident is admissible in court.

According to the Court's decision, during domestic violence incident, John Garret Smith used his land line to call his cell phone. The cell phone's voicemail picked up and recorded screaming, sounds of a struggle, and Smith's threat to kill his wife.

In Smith's first trial, the recording was admitted into evidence and he was convicted of second-degree attempted murder and other crimes. On appeal, Smith argued that the recording should have been inadmissible because it violated Washington's state privacy laws, which require that all parties consent to recording a phone conversation.

The Washington state Supreme Court disagreed and found that the recording did not constitute a "conversation" and therefore was not covered by the Washington State Privacy Act.

The Washington State Privacy Act

The state Supreme Court noted that Washington's privacy statutes are among the "most restrictive" in the country. The Washington Privacy Act forbids recording of private communication and private conversation without "first obtaining the consent" of all the participants.

The Threat Exception

There is an exception to Washington's Privacy Act: conversations "which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands" may be recorded with the consent of just one party to the conversation.

Implied Consent to Recording

The Supreme Court also found that Smith had consented to the recording, based on previous decisions that consent could be "implied" in a variety of situations. For example:

• In State v. Townsend, the Court reasoned that email and internet chat messages could be recorded without explicit consent because a computer is a "message recording device." By using email and chat services, a person implies that they consent to the messages being recorded on the recipient's computer.
• In another case, the Court found that leaving a message on an answering machine also implied consent to being recorded. The Court reasoned that "an answering machine's only function is to record messages," and therefore there is "no reasonable expectation of privacy" under the Washington Privacy Act (see In re Marriage of Farr).

Therefore, participants do not always need to explicitly consent to being recorded.

Why the Court Decided the Recording was Admissible 

The Court first considered whether the recording was a conversation within the definition of Washington's Privacy Act. While there were a few verbal exchanges between Smith and his wife, the Court noted that the recording primarily contained "shouting, screaming, and other sounds…the sounds of a violent assault being committed."

Therefore, the Court decided that that the recorded sounds were not a "conversation" and the recording was not covered by the Washington Privacy Act. By that reasoning, the recording woud be admissible in court.

Further, even if the recorded sounds did constitute a conversation, the Court noted that Smith's consent to recording could be implied. Smith knew it was possible that his cell phone voicemail would record a conversation.

Because his consent to recording was implied, the "threat exception" also applies, according to the Court. With the consent of one party (Mr. Smith) and a threat of bodily harm, a recording is admissible as evidence. This ruling may make it easier to introduce recordings as evidence in a wide variety of Washington misdemeanor and felony criminal cases.