Why Recording Incidents on Your Phone Can Affect Criminal Cases

Recording incidents on your smartphone can affect a criminal case in many ways. There are, however, a number of considerations and complexities that must be explored before potentially using these recordings in court.

In today’s blog article, we are going to briefly discuss how and why the use of third-party recordings can be potentially helpful or problematic.

Evidence

If you are hoping to use a recording as evidence, then you first have to determine if it is admissible in court. For example, recording a fight on a public street is perfectly legal. However, breaking out your phone to record an argument when you are a guest in someone’s home is a bit more sketchy because there may be the expectation of privacy in a private home. This is for the lawyers to decide.

A recording can corroborate a story for either the Crown or the defence, so the recording could potentially be useful. But the more evidence, the better. How is the quality of the recording? Can one actually see and/or hear clearly? A murky recording may not help at all.

Context is also important. A short snippet of a recording might be misleading if what lead up to it and what followed after was not recorded. This type of recording may not be admissible.

If one side thinks that a recording might be helpful, then first of all, you have to find one. Did someone record what happened? Was there CCTV anywhere in front of a business or store that recorded anything of value? So a recording might exist, and might be useable, or might not.

Practical Applications

Recordings can possibly help one side by substantiating over evidence. But the opposite is also true. Recordings can capture incriminating behaviour before, during, or after the event. If one side of the case has a recording deemed relevant, that side will have to show it to the other side under evidence disclosure rules. Sometimes each side thinks it helps his or her case. And counsel on either side can challenge how the recording was obtained, stored, and if it was doctored.

So, recordings can be useful, but they are also fraught with problems, and rarely a simple get-out-of-jail-free card. If you are aware of recordings related to your case, discuss it openly with your defence lawyer, and let the lawyer figure out what to do about it.

Gagan Nahal is a criminal defence lawyer based in Surrey, British Columbia, although he has represented clients across Canada. He works vigorously and tirelessly defending his clients.

If you have any questions about this article or you would like to talk to Mr. Nahal, please call him directly at (604) 527-4769.