This Week’s Blog by Jaime S. Dursht
In a high conflict divorce, spouses are often tempted to spy on each other in an effort to discover and capture evidence of suspected wrongdoing. This includes for example, recording conversations, reading each other’s computer emails and cellular text messages, unlocking drawers and briefcases, and tracking each other’s whereabouts with GPS. Be careful! Spouses often incorrectly assume that because they are married that they are either exempt from the law governing such activity or may simply be oblivious to the possibility that it may be illegal.
As experienced divorce lawyers in Westport and Greenwich know, the rules of evidence prohibit the use of illegally obtained evidence, and Connecticut statutes specifically address the admissibility of electronic evidence. Connecticut General Statutes § 52-184a provides, “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.” With the routine use of iPhones and personal computers to preserve and store information, it is important to have an understanding of the rules to avoid negative consequences.
Computer Email. Whether one spouse may access and read the computer email of the other spouse depends on the characteristics of the computer and email account. One must be an authorized user of the computer, and have proper access to the email account or the owner’s consent. Consent may be implied as in the situation when the account owner’s password is routinely used with his or her knowledge, but facts and circumstances are considered case by case. For example, if the computer is a family home computer to which both spouses have open access then both are authorized users. However, even if the computer is not password-protected, if an email account is password-protected and is accessed without permission, the obtained email may be subject to legal objections and/or injunctive relief in a motion to preclude or a protective order.
Text Messages. Text message exchanges between spouses are commonly preserved and used to show verbal abuse, admissions, state of mind or sometimes to give the court a flair of the relationship. The situation often arises when one spouse views incoming texts on the other spouse’s phone screen from a third party. The viewing spouse may then capture the image by screen shot or forward the text to their own device. If the phone screen was in plain view in an openly accessible area of the home, there is no rule that would protect the privacy of the displayed text messages that appear on screen. However, if the phone was password protected and/or stored inside a personal belonging such as a purse or briefcase, there may be objections raised challenging admissibility on the grounds of improper access.
Recording Conversations. In Connecticut it is illegal to record conversations without the consent of both parties to a telephone conversation. CGS § 52-570d provides, “No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording. …”
If the conversation is in-person, there must be consent by at least one person who is a party to the conversation. CGS § 53a-189 prohibits the unlawful mechanical overhearing of a conversation. “Mechanical overhearing of a conversation” is defined as “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.” Thus, a spouse may not secretly plant a recording device in the other spouse’s car to record that spouse’s conversations with a third party. The recorded conversation will be inadmissible in court, and was recently ruled unusable during the discovery process on the grounds that it would be unjust. Simonson v. Simonson, Superior Court of Connecticut, Judicial District of Stamford-Norwalk at Stamford, FA 156025703S, April 15, 2016 (Colin, J.).
Locked Containers. “Marriage does not destroy one’s constitutional right to personal autonomy but, at the same time, each spouse does relinquish some of his or her rights to seclusion.” In re Matter of Dubreuil, 629 So.2d 819 (Fla 1993). Cases addressing spousal privacy in the home emphasize whether there is a manifestation of an expectation of privacy. For example, when a wife found love letters and photographs of another woman in the home office filing cabinet, the court ruled the items admissible on the grounds that the wife had complete access to the storage room files and had a valid reason to be in the files. “Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed indicated her husband was being unfaithful.” Del Presto v. Del Presto, 235 A.2d 240 (N.J. Super. 1967). The most obvious manifestation of an expectation of privacy is a physical locking device so if you are considering breaking locks to access anything, consider that there may be consequences.
Divorce is a highly emotional and stressful time. It is important to understand the boundaries of spousal “investigation” and to appreciate your own exposure in order to protect your individual privacy. You should assume that anything you email, text, post online or communicate digitally will be discovered and used as evidence. Change your email passwords regularly. The best way to protect your privacy is to assume that there is little to no expectation of privacy during a divorce. The attorneys at Broder & Orland LLC are experienced with the evidentiary issues that often arise in the context of the spousal discovery process, and are adept at advising clients on how best to obtain information and conversely protect their individual privacy interests.