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The Eavesdropping Statute and You: Can You Record Conversations?

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The Eavesdropping Statute and You: Can You Record Conversations?

The Eavesdropping Statute and You: Can You Record Conversations?

Posted in Criminal Law
by Justin Van Den Heuvel

You are involved in a court case. You have a conversation with the other party, and think, “can I record this conversation?” “He says things to me I wish the Judge could hear.” “She admits things that would really help my case, but denies them or states the exact opposite when it really matters.” Does the law allow you to record in-person, electronic and phone conversations, and can you submit those recordings?

Michigan does have an eavesdropping statute.

Under Michigan law, eavesdropping, that is, listening to and recording someone else’s conversation, without their consent, is a felony.  MCL 750.539 (c) reads,

Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both. MCL 750.539 (c).

This statute seems pretty straightforward, and the penalties are stiff. However;

Courts Recognize an Important Exception to the Eavesdropping Statute.

The Michigan courts have made a distinction between recording conversations that you, personally, are a part of, and conversations of other people not including yourself. If you are a participant in the conversation, you are allowed to record that conversation. In fact, you do not even have to get permission of whoever else you are talking to—although in some instances you may want to tell them that you are recording the conversation—Michigan courts allow you to record any conversation or meeting that you are involved in. This applies to phone calls, in-person and electronic (such as Zoom) conversations.  The sentinel case is Sullivan v. Gray, 117 Mich App 476, 481,324 NW2d 58 (1982), (Sullivan), in which the Michigan Court of Appeals stated, “We believe the statutory language, on its face, unambiguously excludes participant recording from the definition of eavesdropping by limiting the subject conversation to ‘the private discourse of others.”  (Sullivan).

The Sullivan case is from 1982. That is 40 years ago. Does it still apply?

The short answer is “yes”. Michigan courts, including the Appellate Courts, have stuck with the ruling in Sullivan, granting an Exception to the Eavesdropping statute. The Michigan Supreme Court has declined to rule against the Exception, nor has the Legislature changed the law to either eliminate the Exception or include it in the statute. And therein is the only catch: the Exception is not explicitly included in the statute. While it is probably legal to record any communication that you are a participant in, it might also be a good idea to secure permission from the other participants.

Where does that leave me if I want or need to record conversations to help or to prove my case?

At Van Den Heuvel Law Office we would strongly recommend that you consult with your attorney regarding any recorded communication before using it in your case or submitting it to any third party. While it is likely legal to use, it is always better to be prepared. Note also that the Exception only applies to you, personally. If a third party, someone who is not part of the communication or is perhaps a bystander, listens in to and records the conversation, it will be considered eavesdropping under the statute governed by MCL 750.539.

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