How valid is a recording as evidence?

Question

José Manuel Alburquerque · Accepted Answer

If you take part in the conversation, you can record it even if the other person does not know and, in general, use the recording as evidence in civil proceedings. The “Tribunal Constitucional”, Spain's Constitutional Court, held as early as 1984 that this does not breach the secrecy of communications. By contrast, a recording of someone else's conversation, in which you do not take part, is as a general rule not admitted as evidence and may be a criminal offence. If the recording is lawful, the judge listens to it and assesses it together with the other evidence. It carries more weight if it is complete and the original file is kept. When it is lawful The Spanish Constitution protects the secrecy of communications against anyone who is not taking part in them. That is why the Constitutional Court distinguishes between two situations. Anyone who records a conversation between other people breaches that right. Anyone who records a conversation in which they themselves take part does not, because secrecy does not apply to the person to whom what is said is addressed. The rule applies equally to a face-to-face chat, a phone call or a meeting you attend. One limit is privacy. If what was recorded intrudes into the other person's private life and has nothing to do with the case, disclosing it, including to a judge, may breach that right. Another limit is the confidentiality of the attempt to reach an agreement. The law generally requires an attempt to reach an agreement before bringing a claim and what is said in that negotiation is confidential. That is why, in principle, a recording of the meetings or calls in that negotiation cannot be used at trial. Recording someone else's conversation, for example by leaving your mobile recording in a room or installing an app on another person's phone, does breach their rights. As a general rule, such a recording has no legal effect at trial, because the law does not admit evidence obtained in breach of fundamental rights. It may also be a criminal offence. The approach to videos is similar. What you record of events happening in front of you is usually admitted, but not what a hidden camera captures in other people's private space. How it is submitted and how it is assessed A recording is a form of evidence in its own right, the reproduction of words, images and sounds. For it to be useful, you should do the following: Submit it with the claim or the defence, with the file on whatever medium the court accepts and a written transcript of the relevant parts, which the law requires when this evidence is put forward. Submit the whole recording, without cuts or edits. The important passages can be pointed out, but a cut-down recording loses credibility. Keep the original file and the device on which it was made, without editing them, in case the other party says it has been tampered with or that the voice is not theirs. Explain in the pleading who is speaking at each point and when and where the recording was made. At the trial, the recording is played and the parties can dispute it. If the other party maintains that it has been tampered with, each side can submit an expert's report on its authenticity. If they allege that it was obtained in breach of their rights, the judge decides that point before taking the recording into account. The judge then assesses it using logic and experience, together with the other evidence. A recording in which the other person acknowledges a debt or an agreement can carry a great deal of weight, but it is always interpreted in its context.