State Supreme Court: Victims can record conversations without prior consent

There was a victory today for victims who record evidence of a crime in progress.

The Washington State Supreme Court released an opinion Wednesday ruling that such recordings – often on cellphones -- are not a violation of the state’s privacy laws governing prior two-party consent.

The opinion, filed Wednesday and authored by Justice Barbara A. Madsen, was in response to an attempted murder in Vancouver, Washington.

John Garrett Smith was arrested in June 2013 for trying to kill his wife Sheryl, who was found beaten in the couple's home.

The husband, who uses his middle name, inadvertently recorded portions of the attack on his cellphone, including a conversation in which he said "I will kill you."  His wife responded, "I know,” and can be heard screaming.

In a bench trial, Smith was found guilty of attempted second-degree murder and second-degree assault, with domestic-violence allegations.  He was sentenced to 144 months in prison.

However, that guilty verdict was overturned by the Court of Appeals because his lawyers successfully argued the recording violated Smith's right to privacy.

Washington is a two-party consent state; permission of both parties to record a conversation must be granted in advance.

On Wednesday, the Supreme Court of the State of Washington reversed Smith's appeal, writing:

“We hold that the recording here does not contain a ‘conversation’ within the meaning of the privacy act.  Further, even if the recorded verbal exchange here could be considered a private conversation within the privacy act, nevertheless an exception contained in the privacy act applies, rendering the recording admissible.  We reverse the Court of Appeals to the extent it holds otherwise.”

Tamaso Johnson, Public Policy Director for the Washington State Coalition Against Domestic Violence, applauded the Supreme Court for its decision that highlights the following exemption to privacy laws: "conversations of an emergency nature -- or which convey threats of bodily harm -- may be recorded with the consent of one party to the conversation."

“There’s a way to read the privacy laws and their exemptions in a common sense manner that really does provide protection and support for vulnerable people and victims of crime as well as uphold the intent of the law,” he told KIRO 7.

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