Fla. court: Crime victim recordings not evidence

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Incriminating statements secretly recorded by a crime victim cannot be used as evidence against the alleged perpetrator even in a child sex abuse case, the Florida Supreme Court ruled Thursday.

The justices unanimously decided that the Legislature would have to change Florida law for such evidence to be admissible in a trial. The law generally prohibits conversations to be recorded or otherwise intercepted without the consent of both parties.

There is no exception for recordings made by crime victims, Justice Charles Canady wrote in an 18-page decision.

“It may well be that a compelling case can be made for an exception … for recordings that provide evidence of criminal activity – or at least certain types of criminal activities. But the adoption of such an exception is a matter for the Legislature,” Canady wrote.

The ruling came in the case of a Lee County man serving a life prison sentence for sexually assaulting his teenage stepdaughter over a number of years. The girl recorded two conversations about sex with Richard McDade, 68, using an MP3 player hidden under her shirt. She then took the recordings to police, who arrested McDade.

The trial judge allowed the recordings to be used to convict McDade, who the girl said had abused her sexually for about six years beginning when she was only 10. The 2nd District Court of Appeal ruled last year that the recordings were proper evidence because McDade had no “reasonable expectation of privacy” despite being in his own home.

The appeals judges added that whatever privacy expectation “McDade may have had is not one which society is prepared to accept as reasonable.”

The Supreme Court overturned that decision, throwing out McDade’s convictions and ordering a new trial without the girl’s recorded incriminating statements. The high court said there is no legal basis for the appeals court’s reference to what society might consider reasonable.

“Privacy expectations do not hinge on the nature of a defendant’s activities – innocent or criminal,” Canady wrote, quoting a 1997 U.S. Supreme Court decision.

Lauren Book, founder of the sexual abuse advocacy group Lauren’s Kids, calls the decision “tragic,” since abused children have now lost a powerful way to document abuse.

“Children who are stuck in an abusive situation have so few tools to protect themselves and find a way to escape,” Book said in a statement. “Too often, children are not believed when they disclose abuse.

“New technology allows people to document their lives in ways unimaginable just a few years ago. To deny children the ability to prove that what they’re saying is true, and even to document the abuse, is tragic and not in keeping with the changes in our culture.

“I vow that Lauren’s Kids will work with the Florida Legislature to ensure that an exemption is created to the private recording laws so that we may bring these sexually deviant-behaving individuals who offend against our children to justice.”

Republished with permission of the Associated Press.