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As the result of the proliferation of video-capable smart phones almost all armed citizens are, if they choose, able to record video or still photographs of a scene and people present during an incident in which they defended themselves. Ability, however, is not the same as advisable! We asked our affiliated attorneys this question –

In your state is it legal to record another person without first obtaining their consent?

How do you suggest armed citizens undertake preserving images that might exonerate them balanced against the risk of appearing ghoulish after a self-defense shooting?

A good number of our affiliated attorneys responded –

Roland S. Harris IV, Esq.
Cohen|Harris LLC
40 York Road - 4th Floor, Towson, MD 21204

In the State of Maryland it is illegal to record audio without both parties’ consent. Consent can be both explicit and implied. Implied consent could come in the form of an audio or visual announcement that audio is being recorded. Audio without such consent is barred for use in court and could subject the recording party to Maryland’s wiretap laws.

Visual images are generally allowed under Maryland law. Both for personal and in court use as long as it is not recorded with prurient intent – essentially nefarious sexual purposes.

If a camera, or in modern society a cell phone with audio recording capabilities, is obviously displayed to the aggressor in Maryland it is unlikely that the court will find the recording party violated Maryland’s two party consent requirement because it was apparent, and obviously known by the aggressor, that they were being recorded.

I would encourage a party who thinks a recording would assist in their defense to record – I have never seen someone be penalized for recording a dangerous situation – and in today’s world I believe the courts are more open minded about what people expect to be recorded. It is not uncommon for cameras to record our every move and often Ring cameras and the like collect audio, as well. So I would not expect someone in Maryland, recording in good faith, to have to fear the law as much as their aggressor.

Laura A. Fine
Law Office of Laura A. Fine, P.C.
PO Box 1240, Veneta, OR 97487
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Home security video recording has become increasingly affordable and accessible. Costco, Home Depot, and similar vendors, including online options such as Amazon, offer easily installed in and out of home video surveillance. For the righteous shooter in a self-defense scenario, these “pictures” paint a thousand words of exoneration for you. The cost of these security videos are a small fraction of your attorney fees to defend you.

Eric Friday
Kingry & Friday
1919 Atlantic Blvd., Jacksonville, FL 32207

Florida is a one-party consent state generally, but case law has modified that to a large extent. Courts have recognized a general right to record interactions with law enforcement, but that has not prevented some illegal prosecutions or threat of prosecutions for recording law enforcement over the telephone. Things that happen in public, however, can be recorded if you can see them in a public place.

I would advise against any recording of a conversation with another private person or persons where you do not have everyone’s consent. That said, if a conflict begins to occur, and you make clear that the interaction is being recorded, it would be helpful in any future prosecution because the other individual would have no reasonable expectation of privacy in the conversation if it continued. There is at least one case where an individual recorded himself being murdered by a criminal in his own office. The court found that the criminal had no reasonable expectation of privacy while committing a criminal act, therefore the recording was not illegal and could be admitted as evidence in his prosecution. State v. Inciarrano, 473 So.2d 1272 (Fla. 1985).

Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580-6130

In New York, only one party must consent to recording a conversation. If you are the person recording the conversation, then you are the consenting party. However, a New Yorker must be very careful if they record parties that are located outside New York, because those other jurisdictions may have different laws.

After a shooting incident, if you are still ambulatory and the perp is not, the very first thing to do is call the police, and then cover the injured person with some kind of cloth to keep them warm. Only after doing those two things would you consider doing anything else.

It definitely could seem ghoulish taking pictures or videos after a shooting, but from a defense perspective it might be useful if elements of the scene are in danger of changing significantly (e.g., crowds are trampling on evidence). Also, if you believe that there is some risk that the police will be very biased in their description of the scene, then taking pictures might be good insurance.

If pictures are taken, probably it is best to have someone else do that job, if possible. If you had a companion with you at the time of the shooting, let them take the pictures. As a defense lawyer, I would rather that my client play only the role of compassionate victim, and not the dual roles of victim and crime scene photographer.

Adam Wood
Wood Law Offices, PLLC
1213 Culbreth Dr. Ste. 431, Wilmington, NC 28405
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That’s a good question. In both North and South Carolina, only one party needs to consent to a recorded conversation and photo/video recording (in public) is generally allowed. So if the person is berating you verbally or acting aggressively, and you’re in a public space or on your private property, go ahead and record.

The prohibition on the use of photographs or other media applies in commercial contexts (e.g. right of publicity), not judicial contexts like using photographs or videos in a criminal trial. So, the short answer for Carolinians is: Yes, you can take that photo or video before, during, or after a self-defense incident if you’re in public or participating in the conversation.

Whether someone should do that, on the other hand, depends on what the photo or video proves (or purports to prove) and what it could be argued to alternatively prove. If the recording clearly illustrates the other person was the aggressor or instigator (both states are “Stand Your Ground” jurisdictions) then I’d say by all means, video it.

The State could easily argue that certain photos/video recordings show a state of coldness and calculation that does not beget an innocent person defending himself/herself and claiming to have been the innocent party to the altercation. Since self defense is an affirmative defense, it’s best to paint yourself in the most favorable light possible so anything that looks like or could be misinterpreted as you being the aggressor, instigator, etc. should be avoided, as should actually being the instigator or aggressor.

In general, I’d say pre-incident photos or videos to show who the aggressor was are generally better, as they can show the events precipitating the self-defense incident, and those shouldn’t be disclosed to the police because then they’d have reason to search your phone.

Don Hammond
Criminal Defense Heroes, P.C.
1327 Post Ave, Suite K, Torrance, CA 90501

California’s recording laws are a bit nuanced. It is a two-party consent state for recordings of private interactions where there is a reasonable expectation of privacy, such as office meetings and phone calls. However, there is no reasonable expectation of privacy when you are in a public place. So, anyone can video and/or audio record a public place, like a sidewalk or restaurant, without consent.

As far as preserving images, it would be ideal if someone other than the client/defendant captured and preserved the images. We don’t want to be put in a position where we have to put the defendant on the witness stand to authenticate images or recordings. They should be produced to counsel as early in the case as possible, so that we can make informed decisions about how and whether to reveal them to prosecutors, and how we might want to use them.

By the way, I won the first CCW denial appeal in LA County last week. Here’s my blog post about it: https://www.donhammondlaw.com/blog/los-angeles-county-ccw-application-appeal-win-ccw-denial-appeal/ .

Nabil Samaan
Law Office of Nabil Samaan
6110 Auburn Folsom Road, Granite Bay, CA 95746
This email address is being protected from spambots. You need JavaScript enabled to view it.

There is a difference between recording a private conversation and a public event that is open to observation. Weighing the liability of recording versus the risk of spoilation of evidence, the test favors preserving evidence. A perfect example is the Trump documents case. The FBI created a crime scene and used it as evidence which has now compromised the entire case.

While it may seem ghoulish to take photos of the crime scene in today’s environment that is not as relevant as 20 years ago. Finally, it must be considered that a proper foundation of evidence is important. It would be best to have a person uninterested in the cases take the pictures rather than the defendant. Finally, Trump’s lawyer illegally recorded Trump, and so did the GA secretary of state, George Raffensburger, and nothing happened to them. It is a rarely charged crime.

Craig R. Johnson
Anderson, Fife, Marshall & Johnson, LC
Craig Johnson Law, PLLC
2500 N. University Ave., Provo, UT 84604

In your state is it legal to record another person without first obtaining their consent?

Yes, Utah is a one-party state.

How do you suggest armed citizens undertake preserving images that might exonerate them balanced against the risk of appearing ghoulish after a self-defense shooting?

The former always outweighs the latter. First and foremost, you need to be present to protect your family and property. You cannot do that when you are behind bars.

Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003

The answer to this month’s question varies widely depending upon which state the parties are in and where the recording is made. Be certain you understand your state’s laws on this before recording someone without their knowledge. In Maryland, for instance, failure to understand this issue can really “Tripp you up.” (https://en.wikipedia.org/wiki/Linda_Tripp) See what I did there? Dad jokes—gotta love ‘em.

In my home state of Arizona, we follow the “one party rule,” which means as long as one party to the conversation consents to the recording, it’s legal. In other words—YOU yourself must be part the actual conversation; if so, you are free to record that conversation. You CANNOT record (legally) a conversation in which you are not present. Attorneys in Arizona routinely use such recordings and they are almost always admitted without much kerfuffle at all.

As for recording/photographing evidence at the scene of a shooting incident, one would hope that the authorities would thoroughly document the scene rendering those efforts redundant. Sadly, that would be a foolishly naïve hope to have. Nationwide PD staff shortages (the result of the wonderful “Defund the Police” movement—what a great idea—if an institution is performing below standard, definitely give them LESS money for training/hiring…) affect support staff even more than front line officers. The (poorly trained?) 24-year-old evidence technician present at the scene at 2:30 a.m. will likely not be looking at documenting any specific evidence that helps a self-defense claim, nor will they likely even know/appreciate what that would be. I have worked on cases where spent casing locations were not even photographed or measured by the evidence team — it would have been nice if a friend of my client had done so.

Do not worry about appearing “gruesome”— everything about this is going to be gruesome. The problem is that if YOU take the pictures, you will likely not be allowed to lay the foundation necessary to have them admitted at trial (although they can still be quite useful in securing a dismissal or a decision to not charge in the first place) since you (if it goes that direction) will be the defendant. Have a spouse/friend or, best of all, your attorney’s investigator, do the documenting.

Lastly, be aware that this may well be a crime scene, and the responding officers are not going to allow much (if any) access to the scene once they arrive. Do not disturb the scene at all and have your friend work fast — you have only minutes prior to the sirens if shots were fired. Get the recording device to your attorney as soon as possible where a decision can be made as to disclosure/revelation of the evidence. Better to have the evidence and not need it than to need it and not have it.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we will explore a new question.

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