Recording
Case Analysis
April
9, 2007
The
case is a good candidate for Supreme Court review and ultimately, reversal.
The
court of appeals’ distinction between recordings made under color of law,
and those not made under color of law, was plainly rejected by the Wisconsin Supreme
Court in State v. Maloney, 2005 WI 74, 281 Wis.2d 595, 698 N.W.2d 583.
Section
968.31(2) makes one minor distinction between the two, but it is not relevant
to the case.
The
statute provides, “It is not unlawful
(b)
For a person acting under color of law to intercept a wire, electronic or oral
communication, where the person is a party to the communication or one of the
parties to the communication has given prior consent to the interception.
(c)
For a person not acting under color of law to intercept a wire, electronic
or oral communication, where the person is a party to the communication or one
of the parties to the communication has given prior consent to the interception
unless the communiation is intercepted for the purpose of committing any criminal
or tortious act … or for the purpose of committing any other injurious act
(emphasis added).”
Thus, the
recording should only be inadmissible if it was made for the purpose of committing
a criminal, tortious or injurious act. Since there can be no plausible contention
that this is the case here, the tape should have been held admissible.
In
Maloney, as in the case at bar, the court did not find that making the recordings
was an “injurious act.” Thus, the court held that, whether or not the
recording was made under color of law, it was admissible. Maloney, 698 N.W.2d
at 592.
In
the case at bar, the court’s analysis of this issue examined only sec. 968.29,
and disregarded sec. 968.31. Under Maloney, however, it is sec. 968.31 that determines
the admissibility issue.
Accordingly,
should the State seek, and the Supreme Court grant, review in this case, it should
be expected that the decision will be reversed.
Click
here for Main Story.
David
Ziemer can be reached by email.
