By: Brielle M. Perelli, Esq.

Matrimonial actions are often plagued with emotional and impulsive actions which can ultimately lead to criminal prosecution.  For example, one common issue that arises in our Firm’s work when  handling criminal actions stemming from divorce proceedings is the presence of evidence in the form of recordings of communications of one’s spouse with a third party.

Pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, codified in N.S.J.A. 2A:156A-3(a), any person who “purposely intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication” shall be guilty of a crime of the third degree.  In other words, a person can be exposed to criminal liability for recording communications, oral or electronic, between parties who have not consented to the interception of that communication.  Not surprisingly, this scenario often arises in the matrimonial law context, where one spouse who is not part of the communication, records communications between their spouse and a third party.

It is clear that there is no explicit exemption for wiretapping by an aggrieved spouse to the criminal exposure outlined under the New Jersey Wiretap Act.  Accordingly, by admitting to such criminal actions under oath or providing the results thereof, you may be exposing yourself to criminal liability and criminal prosecution.  This is why it is imperative that if you in a similar situation or facing such charges you contact an attorney immediately.

Notably, however, when the recording of a communication involves a minor, New Jersey courts have created a “consent exception” to the NJ Wiretap Act, which has been interpreted to incorporate “vicarious consent.” See, State v. Diaz, 308 N.J. Super. 504, 516 (App. Div. 1998).

 Because children lack the legal capacity to consent, courts have held that a parent or guardian may authorize the recording of his or her minor child’s conversations.  In the vicarious consent context, one parent consents to the recording of telephone conversations in his or her home on behalf of one of the parties (the minor child) to the conversation.  D’Onofrio v. D’Onofrio, 344 N.J. Super. 147, 154-55 (App. Div. 2001).

Exceptions to the NJ Wire Tap Act involving a spouse’s recorded communication are primarily in the family law context and are premised on whether such “vicarious consent” was in the best interest of the child.  Thus, it is not a sweeping exemption and blanket allegations of “best interests” simply will not suffice to render vicarious consent permissible under our Wiretap Act. On the contrary, what is required is a good faith basis that it is objectively reasonable for believing that consent on behalf of the minor to taping is necessary and in the best interest of the child.

Thus, “vicarious consent” cases are to be distinguished from those cases that find unlawful and inadmissible the non-consensual recording of conversations intercepted by non-parties between their spouses and third persons who have no knowledge of the interception.