Criminal Defense Attorney | Criminal Defense Law

Blog Published By Kenneth Padowitz, P.A.

Florida Supreme Court | Recording Cannot Be Used As Evidence

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Two-Party Consent Law

The Florida Supreme Court ruled in McDade v. State of Florida, that secretly recorded statements by the victim of a crime cannot be used as evidence against the defendant; this applies even in cases of child sex abuse, or neglect. It was unanimously decided by the justices that the FloridaLegislature would have to change the current law as it stands to allow any such evidence to be allowed as evidence into court. Within the 18-page decision, Justice Charles Canady made it clear that there is no exception to this ruling:

Recording as Evidence“The recordings supported the victim’s testimony that McDade would regularly ask her to have sex with him after school. On both occasions, though he did not use sexually explicit language, he appeared to be asking her to have sex with him. He pressured her by suggesting that if she did not have sex with him he would get physically sick. McDade also indicated he was doing her a favor by not telling her mother that they were having sex because if the mother knew she would take the victim back to Mexico.”

The Case: McDade v. State of Florida

Richard Russell McDade won the right to a new trial after the Florida Supreme Court reversed the decision from the Second District Court of Appeal, which allowed the recording to be used as evidence in trial. McDade is a Florida ice cream truck driver who was sentenced to life in prison for over 6 years of continual sexual abuse of his stepdaughter. During two occasions of the abuse, the stepdaughter was able to record the sexual assault; these recordings were later turned into police. The recordings were allowed to be entered into evidence in the lower courts, on the basis that the victim did not have any other evidence to support her testimony, other than her recordings of the sexual assault; the entire case relied on these pieces of evidence.

Reasonable Expectation to Privacy in Florida

Florida State law does not allow the secret recording of individuals without their prior consent; this law was passed by legislatures as a way to protect the expectation of privacy that one should have in their own home. The reasoning for the reversal is based off this privacy law; there is an expectation of privacy for all activities that take place in the home, even if they are illegal. The “Two-Party Consent” law was originally passed to protect our privacy from the government, but over the years, case law has expanded it’s reach to include protection from the government as well as other people. Federal law does not require the consent of both parties; only the consent of one party is required to be admissible in trial in Federal court.