A cassette tape in an evidence bag
(istock)

In an era when teens routinely record their musings and post them online for the world to see and hear, it makes little sense to bar prosecutors from using a minor’s recorded conversation with her father in a rape case, a judge in Brooklyn has held.

At issue in People v. K.B., 0544-2011, was the admissibility of a recording made by a 14-year-old girl which purportedly implicates her father.

Records show that the girl, who claims she was raped by her father on Jan. 1, 2011, recorded a conversation with the defendant in which he purportedly apologizes to her and asks her not to turn him in. The recording was made before the police were involved and was not made at the request of law enforcement.

The question before Acting Brooklyn Supreme Court Justice Michael Gary was whether a minor can consent to the recording of her own conversation, an issue that the Appellate Division, Third Department, explicitly left open in the only appellate ruling on point, People v. Bastian, 125 AD2d 909 (1986).

Bastian presented a fact pattern similar to that in K.B.

In that case, another 14-year-old girl recorded a telephone conversation with a 61-year-old man who was charged with sodomy and other felonies and ultimately pleaded to a misdemeanor endangering count.

But a key difference the 1986 and 2014 cases is the fact that in the former matter the victim’s parents were present during the recording and implicitly consented on their daughter’s behalf. In K.B., the girl acted entirely on her own.

The Bastian court found no need to “reach the [issue] of whether the complainant had the capacity to give a valid consent in the absence of her parents’ consent.” Gary addressed that issue in K.B. in response to a motion to preclude submitted by defense counsel Douglas Rankin of Brooklyn.

Rankin had argued that the tape could not be used because it was made in violation of CPLR 4506.

Under that provision, eavesdropping evidence is inadmissible. Eavesdropping is defined in Penal Law §250.05 as the mechanical overhearing of a communication without the consent of at least one party to the conversation. The defense argued that the alleged victim, being a minor, could not consent. Therefore, the defense maintained, the recording constituted eavesdropping and is inadmissible.

But Gary said he was not convinced that such a “blanket rule” is necessary.

He noted that the Legislature has clearly sought to protect minors who are crime victims and lowered the age at which a child could give sworn testimony from 12 to nine.

Gary also said the public policy underlying CPLR 4506, as it applies to children in a criminal context, was to “prevent the police from coercing minors into acting as police agents against” their family.

“A law enacted for the benefit of minors should not be interpreted as to deprive a minor who is an alleged crime victim of what could obviously be powerful evidence against the perpetrator,” Gary wrote. “This court finds no reason to conclude that the victim did anything other than purposely record, indeed ‘consent’ to taping her own conversation with the defendant,” Gary wrote. “Parenthetically, courts cannot ignore the fact that the prevalence of technology has provided minors even younger than 14 with access to cell phones, smart phone apps, and other recording devices.”

Gary also declined to preclude the tape on the grounds that it is not the original.

Records show that the tape was copied by a police officer, who apparently added an introduction to the recording to specify when and where it was re-recorded. But the original is missing.

Rankin, arguing that since the original tape has been lost there is no way to compare it with the altered reproduction. Assistant District Attorney Lisa Nugent countered that the defense argument goes to the weight of the evidence, not its admissibility, and Gary agreed.

“If the People can establish through the testimony of the detective and/or the complainant, who is purported to have actually made the recording, that it is the same or substantially the same as the original one, then the jury can determine how much weight to give it,” Gary wrote. “Use of the recording therefore will not be precluded if the People can establish its authenticity.”

Rankin was not immediately available for comment. There was no immediate reaction from the district attorney’s office.