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Comment by josefresco | Hacker News Reader

This seems like clear "witness intimidation" aka "Tampering with a witness, victim, or an informant"

https://www.law.cornell.edu/uscode/text/18/1512

(b)Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1)influence, delay, or prevent the testimony of any person in an official proceeding;

(2)cause or induce any person to—

(A)withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(B)alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;

(C)evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D)be absent from an official proceeding to which such person has been summoned by legal process; or

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Cannot prove it unless the victim was in a state that allows one party consent audio recording and was recording audio. Although Florida is the only southern state that requires all party consent for recording audio, and I presume the previous poster was talking about Texas. Smartphones have solved the recording audio problem, so presumably it would have been possible.

Aren't there usually provisions to override requiring all party consent, if it becomes reasonably necessary as criminal (not civil) evidence or for your own legal/physical protection?

Edit: I looked into it, nope, Florida is utterly insane - a child didn't get consent to record their rapist soliciting/threatening them, so the evidence was denied;

On December 11, 2014, the Florida Supreme Court held in McDade v. State, 154 So. 3d 292 (Fla. 2014), that a defendant accused of child molestation has an expectation of privacy in conversations between him and his victim taking place in their shared residence where he asked her to have sex with him and also alluded to his prior acts of sexual abuse.

...

the court concluded that the Secrecy of Communications Act’s (SCA), F.S. Ch. 934, et seq. (2014), plain language barred the trial court’s admission of a recorded conversation between McDade and his victim into evidence. The decision may surprise some, especially when one considers that the victim’s actions in McDade also constituted a crime under the SCA and authorized the criminal defendant in that case to sue the victim under the statute’s civil cause of action

https://www.floridabar.org/the-florida-bar-journal/mcdade-v-...

https://caselaw.findlaw.com/fl-district-court-of-appeal/1633...

https://law.justia.com/cases/florida/supreme-court/2014/sc13...

They have since made a exclusion for this scenario, allowing children to record talking to their abusers.

https://www.flsenate.gov/Session/Bill/2015/7001

You should still record anyway. Use it in the court of public opinion.

Except if the recording is illegal, it can be used, in some states, against you criminally and civilly.

I was just having this conversation. You can be sued and/or jailed if you record someone without their consent in a two party consent state.

Not saying it's right or wrong, but it exists and is something to think about.

Again, sure technically, but it also Streisands everything about it. The cost-benefit for prosecutors and the other party isn't a slam dunk!

Personally I'd absolutely do it and take the gamble. But I'm risk-thriving (hence started several companies, enjoy international travel, etc.)

>Personally I'd absolutely do it and take the gamble. But I'm risk-thriving (hence started several companies, enjoy international travel, etc.)

I did not think I would ever see someone comparing starting businesses and international travel with committing clear misdemeanors and possible felonies and opening oneself up to civil suits.

That sounds like a description of every American civil rights activist ever.

Great, so instead of being able to count on the justice system we're basicall back to mob justice?

We like to think of it as democracy in action.

So the Salem witch trials were "democracy in action"?

The Salem witch trials were under the justice system.

No shit. I was totally wrong. I picked a horrible example, lol. Thanks =)

Yep. Democracy isn’t perfect it’s just one compromise among many.

So better that more innocents be punished than risk any guilty going free? Truly, your love of the strictest "definition" of democracy is baffling, though I think most would vote against you.

No, Democracy gets it wrong in both directions with more of the guilty set free and more of the innocent sent to prison at least compared to a hypothetical ideal system.

I'm not sure how you get "punishing innocents" from publishing a very incriminating recording even though making such a recording is illegal.

You literally called the Salem witch trials democracy in action, and don't understand how I got to punishing the innocent?

Mob justice can be true justice. As in this case precisely, there was proof that a court refused to listen to.

At some point you need to worry about deep fakes, etc, but there's still cases where the accused more or less says they are guilty and flips the court off and everybody acts like nothing can be done about it.

The main concern (and it's not much of a concern) is that you are charged with wiretapping or the equivalent. The penalties for this are not necessarily severe. Refuse to plea and force a trial.

If the recording is not tampered with it's unlikely a civil case will get anywhere.

If someone is actually a rapist and got off on a technicality it's your moral imperative to do something, no? Stand up to unjust laws. Evil prospers because idiots like you do nothing.

>idiots like you do nothing.

That seems unnecessary ad hominem. Just completely uncalled for.

Also, you're assigning a values judgment to my statements that I genuinely thought I was clear about when I said "Not saying it's right or wrong, but it exists and is something to think about."

You have no idea what my stance is on literally anything. Trying to be superior to someone who has given you nothing to feel superior about seems sort of hateful?

Facts are facts, and consequences are consequences, regardless of right or wrong. That was my meaning. Agree with the outcomes or not, believe me or don't. That doesn't matter.

>If the recording is not tampered with it's unlikely a civil case will get anywhere.

How do you figure? If it is a surreptitious recording without consent, the person who was recorded has a pretty clear line to a civil case.

it's a stretch, but the judge could bar revealing the motive for recording, or playing clips that reveal the nature of what was recorded, in order to keep the jurors from learning that it was child rape and nullifying the charge. in practice it's unlikely though.

also wait, were criminal charges brought against the rape victim for recording? did some prosecutor decide to actively assist further ruining the victim's life? civil I can understand, but what a scumbag for not exercising prosecutorial discretion if so.

https://youtu.be/lSM-9RBk3HQ

Or just make a deepfake of anyone you want saying anything you want and try them in the court of public opinion. Mob justice is a poor form of investigation.

Courts in the US often do nothing, so mob justice is all you have.

This is a separate issue that will need to be addressed. It will soon be possible to claim any video or audio evidence is faked. I don't know what happens then, but building off of what happens now, each piece of evidence is just weighting the scales one direction.

We have more options than mob justice. Who told you that, that was our only option? Once you resort to mib justice, their verdicts can't just be "taken back". I'll give you a link to Emmett Till, and that's what mob justice brings.

https://en.m.wikipedia.org/wiki/Emmett_Till

I live in the US. Courts in the US are often useless. If you have a high profile case you might get justice but usually nothing happens.

I'm definitely aware of what can happen. I don't know how often it does. But if you restrict yourself to forcing justice only when you aren't acting on a hunch you're probably doing the best for yourself you can, because the alternative is usually nothing.

I live in the US as well and you're arguing for a medieval form of justice. You think we should go back to conviction on a "hunch" and feelings. Have we fallen so far that I have to argue for the merits of a justice system based on evidence in a technical forum? Education and critical thought should be inextricably linked.

No, you didn't understand what I wrote. If you are sure you're not operating on a hunch, which is certainly possible, then just shrugging your shoulders when the court does nothing is insane. If you have proof that a court refuses to listen to then it is your moral imperative to act on it if you can do so.

Isn’t California’s version this what was used in the Planned Parenthood recordings?

https://www.npr.org/sections/thetwo-way/2017/03/29/521919322...

Even then, they will end up not firing the employee then and there, and instead find an excuse to fire them a couple of months later.

Or make his work-life a living hell so he quits himself.

Which has a name: constructive dismissal

Sorry, where does it say that all proof must be in the form of an audio recording? Prosecuting crimes worked perfectly fine before the invention of the tape recorder.

I am deducing it based on the fact that if one person is threatening someone by talking to them in person with no one else around, then he said she said accusations will not be sufficient to convict one of witness tampering in a criminal trial.

But how then verbal intimidation was proven in an age before audio-recording?

Was it? It is pretty well known that one of the main obstacles for populations such as poorer people, women, minorities, or anyone else in a position position where someone has power over them that they can be coerced into questionable activities and they have no recourse because there is no proof.

This is correct if your only goal was to secure a conviction, but you are forgetting that when witness tampering is occurring, there is already a judge who is very willing to hear evidence about it. The integrity of their court is at stake. They absolutely do not require an audio recording to make any number of potent orders to protect you. The indirectness of the threat and its unsuitability to curing by judicial power is more of a problem than the lack of audio recording.

Your best bet if you care about delivering the evidence is probably to leverage the power of the judge, ventilate it and get the people threatening you to retreat. If you do that, you transform a threat behind closed doors (not to do something) into a retaliation for something real that you did (telling the court about tampering) that you can tell your tenure committee about later. In sum, open justice is designed to expose these things, it is far and away the best forum for it, so better to use it while you can.

My guess is recording laws probably grew from eavesdropping laws so perhaps in some situations you could setup an eavesdropper to serve as a collaborating witness.

Or they could've attempted to intimidate you while you were in a crowd.

Otherwise it would be on reputation alone, just like now.

There is no reason to require all party consent to record a conversation unless you want people in power to have even more power over others.

It generally wasn't without a direct witness that saw it.

Technically, yes. But when the other party is breaking the law, I'd still do it. Then if the other party wants to prosecute on that, well, then discovery will become interesting and all of it will affect the other case.

> Cannot prove it unless the victim was in a state that allows one party consent audio recording and was recording audio. Although Florida is the only southern state that requires all party consent for recording audio, and I presume the previous poster was talking about Texas. Smartphones have solved the recording audio problem, so presumably it would have been possible.

Is this true even when gathering evidence of a crime?

California has the same law as Florida.

Edit: the laws are the same, and you can't use an illegal recording in a court -- expressly. If you try to give an illegal recording to the news you'll likely get taken in civil court.

In California a recording without required consent is a crime when made. Intended use doesn't play into that. It is also separately prohibit from use as evidence in court except as evidence of violation of the law prohibiting such recording itself.

> If you wanted to play it on the news, however, you're still free to do that as far as I know.

Sure, if you want to advertise the crime you committed on the news you are permitted to do that.

There is no express prohibition on this in the California law, sure, but it probably is a good way to rack up civil liability as well as advertising your existing exposure to criminal liability. If Florida really has identical law in this area, I’d expect the same thing.

This article [0] states the contrary: the recording _can_ be used as evidence in a criminal trial, but it seems the actual act of recording it is still criminal as a separate matter.

> Posted: Dec 5, 2019 / 05:44 PM PST / Updated: Dec 5, 2019 / 05:44 PM PST Secretly recording someone else’s conversation is illegal in California, but prosecutors can use the illicit recording as evidence in a criminal case, the state Supreme Court ruled Thursday.

> In their unanimous ruling, the justices cited a 1982 ballot measure passed by voters that allows all “relevant evidence” to be introduced in any criminal trial or pretrial hearing, the San Francisco Chronicle reported.

> The case at hand concerned a private phone call about the actions of an alleged child molester. While the conversation was confidential under state law, its contents were clearly relevant and were properly disclosed to the jury in the molesting case, the court said.

> The ruling follows a line of cases that narrowed criminal defendants’ rights after the 1982 ballot measure, which sponsors dubbed the Victims’ Bill of Rights, the Chronicle said. The measure included provisions that increased sentences, narrowed the insanity defense, allowed victims to testify at parole and sentencing hearings and let prosecutors introduce evidence that had been obtained in violation of state law.

> The court also rejected defense arguments that admission of secretly recorded evidence would violate the right to privacy in the California Constitution. Those who are harmed by the recordings can still sue for damages, the eavesdroppers can be prosecuted, and the evidence remains inadmissible in non-criminal cases, Cantil-Sakauye said.

[0]: https://ktla.com/news/local-news/its-illegal-to-secretly-rec...

Ah, today I learned. I had searched on this a while back but couldn't find provisions for the civil side of things.

Yeah, I don't have much concrete on the civil side, but it seems likely to be a case of public disclosure of private facts. Where everything contained is a matter of legitimate public interest, that might not apply.

The news organization is free to play it, but the person who recorded it would have still broken the law and opened themselves up to prosecution.

https://recordinglaw.com/party-two-party-consent-states/

It is a dice roll that I would not bet on, see adjacent comment:

https://news.ycombinator.com/item?id=29068596

Generally whistleblowing laws override audio recording consent.

Tampering with a witness is a crime, and attempting to document evidence of a crime will outweigh the civil tort.

Reply on news.ycombinator.com