Man with hidden microphone taped to chest

We’ve all seen it – you testify in court as to your ex-husband’s abusive conduct, but it’s a he-said, she-said, with no corroborating evidence. If only you were recording conversations… It’s legal to record your own conversations in Colorado, but that does not necessarily mean you should, nor that the recorded conversations are useable in court. There are advantages and disadvantages to recording. You should discuss the specifics of your case with your lawyer before recording.

As Colorado is a no-fault divorce state, in family law recorded conversations are used most often in child custody cases to prove the other party is a “bad” parent. But there may well be other situations where a recording to prove something was said is relevant (maybe in the heat of an argument, a parent admits she has hidden cash?), so while the examples in this post focus on parenting, the discussion is relevant for any type of case.

Colorado is a “one-party consent” state, which means someone can record their own conversations without telling others they are recording. What can you not do? Don’t eavesdrop or secretly record a conversation you are not part of or visibly present for. Unless you are the police, don’t engage in bugging, wiretapping, eavesdropping, etc.

Recording In-Person Conversations

Per C.R.S. 18-9-304, “any person not visibly present during a conversation or discussion commits eavesdropping” by knowingly overhearing or recording a conversation. This means you can record your own conversations, and ones where you are visibly present (i.e. you can’t hide in a closet for the purpose of recording a conversation, nor can you leave a recorder hidden while you leave the room.

Recording Telephone Calls

Colorado criminalizes “wiretapping”, which is knowingly intercepting or eavesdropping on telephone calls. C.R.S. 18-9-303. However, it’s not a crime when it’s your own call – the statute has an exception for the “sender or intended receiver of a telephone or telegraph communication.”

Recording Interstate Conversations

Note that while Colorado okays secretly recording conversations you are part of, this only applies if all parties are physically present in Colorado. If you are out-of-state for an exchange, you have to check with that state’s laws. Or if you are recording a telephone call and the other party is out of state, it’s not just Colorado law which applies, but the law of the states where any party is located.

And in some states, recoding conversations is illegal unless all participants know and consent to the recording (there are fifteen so-called “all party consent” states). While we cannot advise on state laws outside of Colorado, Justia has a web page outlining the laws of each state, with links to the relevant statutes. PLEASE – check the law of other states before you record a conversation or telephone call.

Hidden Cameras

The rules on hidden cameras which pick up only video, not audio, are more relaxed. They can be used in public places, at businesses, or on your own property with appropriate notice. C.R.S. 18-9-305(a).

However, it is a crime to secretly record someone’s “intimate parts” with a hidden camera in a place where they have a reasonable expectation of privacy, such as in a bathroom or while changing in a bedroom. C.R.S. 18-7-801

Should I Record My Conversations?

The fact that recording conversations or telephone calls may be legal is only the first part of the inquiry – the next issue is should you do it? Is it advisable to record a conversation? There really is no good answer which will apply to every situation. Instead, we can present advantages and disadvantages to recording conversations, and you should discuss with your attorney whether it makes sense to do so in your case.

I’ve had dozens of cases where my client has recorded conversations with the other party (usually without even checking with me!) And in the end, I’ve probably used recordings in contested child custody hearings maybe once every 3-4 years. And in a few other cases, clients provided recordings to a custody evaluator. In most cases, the benefit of using recordings did not justify the potential blowback on the client.

Advantages of Recording Conversations

Recording Conversation Proves Anger

It’s hard for the other party to deny something when you have him recorded. So the advantages of recording conversations are:

  • Proof. A recorded conversation may be the only way to prove the other parent’s conduct.
  • Compelling. A recording may be more powerful than your own testimony or even a transcript, which don’t capture the ugly tone and shouting.
  • Prevent Conflict. If the other party is aware he is being recorded, she’s likely to be on her best behavior. So instead of gathering evidence, you may have the benefit of less conflict at exchanges.

Limitations & Problems with Recording Conversations

Recording conversations or calls is not for everyone, and there are plenty of limitations and downsides to consider:

  • Recordings Only Prove What Happened, not what didn’t happen. Play a couple of outbursts by the other party, you’ve proven he’s an angry person. But if you are accused of anger, there is no one brief recording that proves otherwise. But if you are accused of misconduct at a specific event, a recording of the conversation could disprove the accusation.
  • Judges Know You’re Acting. Trying to convince a judge you’re a good parent from a couple of recordings is not easy, since you’re obviously going to be on your best behavior on your own recording.
  • Other Side Learns of Recordings. If the other party knows she’s being recorded, she will be on her best behavior, depriving you of evidence.
  • Discovery. The other party’s attorney can seek copies of your recorded conversations through the discovery process.
  • One-Time Use. Recording is a “silver bullet” you can use once. Unless the other party truly cannot help himself, once you play recordings in court at one hearing, he won’t fall for that one again.
  • Makes Bad Situation Worse. Upon the other side ultimately learning of the recording, it makes a bad situation worse by perpetuating strife and distrust, and destroying any chance of a normal relationship.
  • Cannot Prove Nonverbal Conduct. An audio recording won’t pick up the other side shaking his fist at you, flipping you off, etc.
  • Recordings Not Helpful. I’ve seen plenty of cases where clients provide recordings they believe prove the other side is abusive, but in reality they show both parents swearing and behaving badly.
  • Recording Won’t Endear You to Judge. I saved the worst for last. Recording conversations won’t reflect well on you – it is unseemly, devious, and may show you care more about ambushing the other side than encouraging a sharing of love between the children and the other parent – a statutory factor the court must consider when determining best interests of the children.

How to Secretly Record Conversations

Following these steps will maximize your chances of successfully recording your interaction with the other other party.

Practice Recording

Make sure you know how to record, and that it actually works.

Test the Volume

Have your phone in a place where it can actually pick up what’s being said. Purses or loose-fitting pockets in jackets work better than jeans.

Don’t Get Caught Recording

Sure, recording conversations is not illegal (in Colorado), but if you get caught, you’ve pretty much destroyed your chances of getting valuable evidence for trial. So don’t check it or fiddle with buttons during the conversation.

Record the Time & Date

You need to prove when & where the recording took place. So after you start recording, set the scene before you meet the other party (e.g. “it is 4:55pm on Saturday, January 30th, and I just pulled up to John’s house.”)

Record Entire Conversation or Event

Your attorney will decide whether a snippet or the whole recording is better evidence, but if you start recording a conversation already underway, or you end the recording early, it’s too easy to dismiss as being out of context.

Be On Your Best Behavior

If the recording catches you swearing or arguing, you’ve turned proof of the other side’s abusive conduct into nothing but both parents behaving badly. Read our article on bad behavior to avoid in the Colorado Family Law Guide.

“Narrate” Visual or Physical Gestures

An audio recording won’t pick up non-verbal behavior. So if his conduct is visual or physical, say something which describes it, such as “stop flipping me off” or “please let me out.” But be natural, and be subtle – too much narration creates suspicion.

Label & Save Useful Recordings to Private Account in Cloud

Don’t save everything – it will be too hard to find what you’re looking for. If the recording picks nothing up, get rid of it. If it has forensic value, label it by date and what happened, and save it in the cloud (in case you lose your phone) to a private account the other party has no access to.

Record Multiple Conversations or Events

Don’t stop at one recording, which could be dismissed as the other side just having a bad day. Recordings of abusive conduct over multiple days prove bad behavior is “normal” for the other side.

How to Use Recorded Conversations in Court

Want to test the patience of a judge? Try to play an hour’s worth of recordings containing mostly irrelevant banter, and the parts that are relevant are virtually indecipherable. Once you and your attorney have decided that recorded conversations will help your case, here’s how to use them effectively:

  • Pick Best 2-3 Recordings. Prove your point with the most damaging recordings which are intelligible.
  • Use 2-3 Minute Snippet. Focus only on the part which helps you, not 10 minutes of dead air or banter. But to avoid accusations the recorded conversation is taken out of context, you should provide the entire recording to the other side and have it in court if necessary.
  • Have Recordings Ready to Play. Have the shortcuts to the snippet on your screen and practice playing them before trial to avoid fiddling around in court trying to get it to work.
  • Transcript. Always transcribe the conversations – a judge who can follow along in writing while listening to a recording is less likely to miss something important.
  • A Recording is Evidence. Your lawyer will have to provide a copy to the other side in advance (unless it’s rebuttal evidence), and then “lay a foundation” to get it admitted at the hearing.

In a blog post last year on child abuse, we discussed the Brooks1In re: Marriage of Brooks, (Colo.App. 2020) (Unpublished decision). case, where the trial court permitted a mother to use secret recordings of the father at a custody hearing to prove his abuse. and the Colorado Court of Appeals upheld that ruling.

What if I Think I’m Being Recorded?

Don’t create a scene, or even let the other side know you’re onto them. That simply proves their point that you have anger issues. Instead, nullify the benefits of the recordings by being on your best behavior – assume everything you say may be played back to the judge. If you act like the other side could always be recording you, you should never have anything to worry about.

And tell your attorney of your suspicions, so he/she can decide whether to ask for all recordings in discovery.

Don’t Record the Kids

This needs a topic of its own, but for the purposes of this discussion, just don’t do it! While lawful, the children will find out (if nothing else, from the other parent). You will destroy trust between you and your child, and the judge will really not like it. In decades of practicing law, I have never yet seen a case where the benefits of a recorded conversation with a child justified the certain harm to my client’s case.

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