United States: A Wake-Up Call For Attorneys On Using Recorded Conversations

Originally published by Law360, New York (August 18, 2015)

The recent arrests of two criminal defense lawyers in Pennsylvania provide a dramatic illustration of the perils posed when a lawyer attempts to use recorded conversations made without the consent of all parties. In Pennsylvania and 10 other states around the country that do not follow the "one-party consent" rule for legally recording conversations,1 lawyers have always been wise to proceed cautiously before seeking to use recordings. But the recent cases exemplify the extreme consequences that can flow from trying to use increasingly common cellphone technology on a client's behalf.

The two Pennsylvania cases, Commonwealth of Pennsylvania v. Booker2 and Commonwealth of Pennsylvania v. Benyo,3 merit careful consideration for a variety of reasons. First, the lawyers were charged even though they neither made the tapes nor (at least based on the criminal complaints against them) were they complicit in their creation. Second, in both cases, the lawyers themselves disclosed the existence of the tapes to law enforcement in an attempt to induce favorable treatment for their clients. Third, in each case, the complaining witnesses against the attorneys were the same law enforcement officers who were pressing the underlying criminal cases against the attorneys' clients. Finally, the prosecutions may squarely confront the scope of a 2014 Pennsylvania Supreme Court decision, which held that conversations intercepted via telephone fall outside the two-party consent statute.

Stanley Booker was arrested on July 27, 2015, on a criminal complaint. The complaint, filed by State Trooper Joseph Morris, alleges that on March 28, 2015, Booker appeared as counsel at a preliminary hearing in a criminal case against his client, Deshaun Emery (Emery was charged with armed robbery and pistol-whipping a woman named Kimberly Taylor). Booker is alleged to have approached Morris and the prosecutor before the hearing and told them he had a tape recording "you need to listen to." He then played a recording on his cellphone between the alleged victim, Taylor, and a third party, Tamara Bucher. On the tape, Taylor denies that Emery ever pistol-whipped her. After playing the tape, Booker asked the State to drop the case against Emery, failing which he would seek to have all charges dismissed.

During the preliminary hearing later that morning, Booker cross-examined Morris. During the examination, in the presence of the judge and others in the courtroom, Booker played a portion of the same tape. After the hearing, the prosecutor and Morris confronted Booker claiming that the tape on his cellphone was obtained in violation of the Pennsylvania Wire, Electronic or Oral Communication Law (18 Pa C.S.A. Section 5701 et seq.) because it had been recorded without Taylor's knowledge or consent. Booker allegedly admitted that he knew Bucher had not obtained Taylor's consent to tape their phone call, but urged that it should be heard because it went to the alleged victim's credibility.

Gerald Benyo was arrested on the same day as Booker.4 Benyo's client, Kendraneshia Barnett, was carrying a set of brass knuckles in her purse when she went through a metal detector at the courthouse. The police deputy (Erica Bacon) confiscated the weapon, but later the same day gave it to an employee of the public defender (Dionna Steele), who returned it to Barnett. A few days later, for reasons that are not identified, Barnett recorded a telephone call with Steele using her cellphone.

Barnett and Benyo later met with a state trooper. In an apparent attempt to gain favor by assisting in a prosecution against Bacon and Steele, Barnett provided the trooper with her cellphone, which contained text messages with Steele and the recorded conversation with Steele. The following month, Benyo is alleged to have filed a transcript of the taped conversation in a motion for an evidentiary hearing in an unrelated drug case against Barnett. The motion included a verification by Barnett that she knew that her possession of the brass knuckles and her taping of the call with Steele could subject her to criminal liability.

Benyo was charged with violating the two-party consent statute for attaching the transcript of the recorded conversation. Barnett, Bacon and Steele were also charged with various crimes.

18 Pa. C.S.A. § 5703(2) makes it a crime to "intentionally disclose or endeavor[] to disclose" the contents of any wire, electronic or oral communication, or evidence derived therefrom, when the person knows, or has reason to know, that not all parties to the communication consented to its interception. Section 3 of the statute is the same, but criminalizes the use or attempted use of intercepted information. The attorneys were charged under both prongs of the statute.

It appears clear that both Booker and Benyo were aware of the statute, but believed that their attempted use of the recordings would not subject them to prosecution. Indeed, in both cases, law enforcement would have been unaware of the recorded conversations but for the attorneys' affirmative disclosure of the information to try to benefit their clients. These decisions wound up backfiring against both the attorney and the recording party.

The attorneys' arrests raise thorny questions about what a prudent practitioner in a two-party consent state should do when the lawyer is presented with a recorded conversation that does not, on its face, indicate that all participants have consented. Even listening to the tape could be problematic since a prosecutor could later contend that the attorney somehow "disclosed" or "used" — or tried to disclose or use — statements made in the recording, or gathered evidence based on the contents of the communication.5 Although it is true that an attorney may be able to argue the attorney did not "know" that the other party to the call had not consented, an attorney who fails to make a diligent inquiry into the circumstances underlying the recording could conceivably be accused of conscious avoidance of the illegality.

It is a natural instinct for a zealous advocate, upon receiving clear, recorded evidence undermining a claim against the lawyer's client, to want to use that evidence in pursuit of a just result. See Pa. R. Prof. Conduct 1.1. Yet, in Pennsylvania, a lawyer told of an exculpatory tape recording will face an overpowering conflict in the wake of Booker and Benyo: Either refrain from using the helpful tape or risk personal criminal liability for disclosing to an adversary (or anyone else) about the tape's contents. Since Booker and Benyo involved both private and public airing of the recorded communications, it is hard to know whether a defense lawyer who makes only private use of the communication would be prosecuted, but the risk obviously exists inasmuch as both complaints reference private as well as public use.

Pennsylvania lawyers will also be watching closely to see how these prosecutions will be affected by a 2014 decision of the Pennsylvania Supreme Court in Commonwealth v. Spence, 91 A.3d 44, 47 (Pa. 2014). In Spence, a police officer listened in on a cellphone call between an arrestee and his alleged drug dealer (Spence), who incriminated himself. Spence moved to suppress evidence of the content of the call on the ground that it was illegally intercepted because Spence had not consented to the trooper's listening in. The Supreme Court denied the motion, finding that the statute required interception by "the use of an electronic, mechanical or other device" — a definition that it found did not include a telephone. Although the case did not involve a cellphone's recording function, the court appeared to suggest that the holding applied to anything a phone can do: "[T]he language of the statute does not state that it is the use to which the telephone is being put which determines if it is considered a device." Id. at 47.

An expansive reading of Spence would result in the dismissal of both the Booker and Benyo prosecutions (as well as the cases against Bucher, Barnett and other defendants in Pennsylvania who recorded through their cellphones). It would also rip a gigantic hole in the two-party consent statute because technology allowing one to record via a smartphone is both widely available and easy to use. However, in a December 2014 civil case, Talbot Todd Smith v. Unilife Corp., 72 F.Supp3d 568, 572 (E.D.Pa. 2014), the court sustained a pleading that alleged recording by cellphone, finding that there was "ground to question whether the holding in Spence would apply to the use of a non-telephone application [such as the voice memo application] contained on a smartphone to intercept a conversation."

Another recent case declined to apply Spence to text messages sent via an iPad, holding that an iPad is not "the functional equivalent of a telephone" under the statute, even though it can "perform functions similar or identical to a modern cellular phone ... [A]t this time, the technologies in question remain different not only by degree, but also in kind." Commonwealth v. Diego, No. 1989 MDA 2014, 2015 WL 3868639 (Pa. Supt. Ct. 2015).

Obviously, it remains to be seen whether Spence will avail Booker and Benyo in defeating the claims against them. However, in the interim, their arrests and prosecutions should provide a wake-up call for attorneys in Pennsylvania (and other states with similar statutes) who might be tempted to accept, listen to and use a recorded conversations obtained without explicit evidence that all parties have consented to its recording.

Previously published by Law360

Footnotes

1. A "one-party consent state" is one in which a conversation is legally recorded so long as any party to the conversation consents to the recording. States requiring two-party consent in at least some circumstances are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire and Washington.

2. MJ-3503-CR-0000233-2015 (Mag. Dist. Ct. Mercer Co.)

3. MJ-36202-CR-0000181-2015 (Mag. Dist. Ct. Beaver Co.)

4. Both Booker and Benyo were charged by the Pennsylvania Attorney General's office. The Attorney General's Office subsequently withdrew the charge against Benyo, but indicated its intention to re-file.

5. It is an open question whether a lawyer risks criminal charges by playing the tape for co-counsel even if the playing is for the purposes of determining whether the recording could be used.

Tyler Maulsby, an associate at the firm, assisted with the preparation of this article.

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