Evidence for the Family Lawyer Intrafamily Wiretapping the Fifth Amendment and Other Selected Topics

JurisdictionKansas,United States
CitationVol. 68 No. 03 Pg. 24
Publication year1999
Kansas Bar Journals
Volume 68.


Journal of the Kansas Bar Association
March, 1999


Steve Leben [FNa1]

Copyright (c) 1999 by the Kansas Bar Association; Steve Leben

Family law practice can be difficult enough, as lawyers often must use all of their personal relations skills to bring order to chaos with respect to the financial and personal lives of their clients. In addition, family law practitioners must be able to try their cases in court, although, for some, such cases occur only sporadically. In this article, in an attempt to help family law practitioners, we examine five evidentiary issues that may arise in family law cases. First, we consider whether tape recordings made of intercepted telephone calls between a parent and a child may be admitted into evidence--and, even if they may be, whether attorneys should advise their client to make such tapes. Second, we try to distinguish when a person's recollection of financial transactions is admissible in the absence of documentation. Third, we examine invocation of the Fifth Amendment privilege in civil proceedings in Kansas, specifically whether any adverse inference may be made from that invocation. Fourth, we catalog the exceptions to the hearsay rule that may be applicable when trying to get out-of-court statements by children admitted into evidence. Last, we discuss whether lay witnesses may express an opinion as to the best interests of a child in a custody dispute.

*25 I. Wiretapping, eavesdropping and invasion of privacy

Fueled in part by a need for corroborating evidence of marital infidelity or other fault to obtain a divorce, [FN1] divorce cases once were said to be rivaled only by industrial and political espionage in the use of wiretaps and electronic surveillance. [FN2] Because the requirement for corroborating testimony has been gone in Kansas for more than two decades, this phenomenon is now seen more frequently in child custody disputes than in disputes about the divorce itself. Practitioners advising clients with respect to this conduct need to be aware of the underlying criminal laws, the rules governing admissibility of the evidence that may be obtained and the potential exposure to civil liability that may accompany these efforts.

A. The statutory framework

Federal and state statutes prohibit wiretapping of telephone conversations, along with certain other conduct that has been determined to sufficiently invade the expectation of privacy that it should be made criminal. A full review of these statutes is beyond the scope of this article, but the discussion set forth here should effectively arm family practitioners for most of the questions they will face in everyday practice. [FN3]

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 makes criminal the act of anyone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication." [FN4] The statute also makes criminal the act of anyone who "intentionally uses, or endeavors to use, the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection." [FN5] Because "use" of the communication can occur merely by reading a transcript provided by a client, [FN6] this provision has significant potential application to attorneys and expert witnesses in divorce or custody cases. The federal statute provides for fines and/or imprisonment of up to five years as punishment for violations. [FN7] In addition, it authorizes private civil actions in which both actual and punitive damages may be recovered, along with attorney's fees, for violations. [FN8]

Kansas law has a broadly written prohibition against eavesdropping, which is defined to include knowingly and without lawful authority: (a) entering into a private place with the intent to listen surreptitiously to private conversations or to observe the personal conduct of others; (b) installing outside a private place any device for hearing, recording, amplifying or broadcasting sounds originating in that place that would not ordinarily be audible outside; or (c) installing any equipment for the interception of a telephone or other wire communication. [FN9] Kansas law also makes it unlawful for a person to intercept a message sent to another by telephone, telegraph, letter or any other means of private communication. [FN10] Kansas does not have an explicitly granted private right of action for violation of these provisions, [FN11] although actions for

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invasion of privacy generally would presumably be available. [FN12]

Both the federal and Kansas statutes have a variety of exceptions. The ones of greatest significance here are those for consent and for extension phones. Consent of any party to the communication to its interception is an exception under the federal act so long as the communication was not made for the purpose of committing some other criminal or tortious act. [FN13] Consent of either party to a communication is also an exception under the Kansas statute for breach of privacy. [FN14] Under the Kansas eavesdropping statute, consent is an explicit exception with respect to the installation of listening devices. [FN15] Whether consent would be an exception to the other statutorily defined form of eavesdropping--entering into a private place with the intent to surreptitiously listen to private conversations or observe personal conduct of another person--is not clearly established by the statute; however, it would seem that consent should not be an applicable defense if the "personal conduct" being observed was something about which a reasonable expectation of privacy would attach.

The Kansas statute making breach of privacy through interception of telephone messages unlawful has a specific exclusion for messages overheard on a telephone party line or on an extension phone. [FN16] The federal statute excludes from its coverage interceptions that occur via telephone instruments provided to a subscriber by the phone company when used in the ordinary course of business. [FN17] In at least some cases, this has been applied to exclude from coverage a parent listening in on a call involving a minor. [FN18]

B. The issue of admissibility of the evidence obtained

1. General rule--federal statute

The admissibility of intercepted communications, at first appearance, is a simple issue if the interception was a violation of the federal statute. Communications intercepted in violation of the federal statute may not be received in evidence in federal or state courts or agencies. [FN19] However, like most rules of evidence, the rule is subject to exceptions. For example, in at least some cases, illegally intercepted communications have been allowed for impeachment purposes. [FN20] Thus, if the opposing party testifies in a manner that could be impeached by the intercepted communication, the door has been opened to its admissibility.

2. General rule--Kansas statutes

If the federal statute is not applicable, but the interception is found to violate one of the Kansas provisions, the result is less clear. The federal statute explicitly provides for exclusion of illegally obtained evidence; the Federal Rules of Evidence also provide for exclusion of evidence via statutory prohibition. [FN21] The Kansas eavesdropping and breach of privacy statutes do not discuss admissibility of evidence. When government conduct is not at issue (i.e., in civil cases), there is no exclusionary rule mandated by constitutional principles. Thus, the general rule-- that all relevant evidence is admissible [FN22]--would appear to apply. However, that rule applies "[e] xcept as otherwise provided by statute." [FN23] No case has specifically addressed the effect of that exception in this context, but it would not seem to contemplate statutes outside the Rules of Evidence themselves, at least when those statutes do not explicitly attempt to govern admissibility of evidence. Nonetheless, one may argue that the court, under this exception, could exclude evidence obtained in violation of the Kansas eavesdropping and privacy statutes, even though there was no showing of a violation of the federal statute. [FN24] Even if excluded as part of a party's affirmative case, however, such statements still would likely be admissible for impeachment purposes, as they are under the federal statute.

3. Domestic cases: Interspousal and child communication interceptions

In most cases, under these general rules, admissibility of the evidence will depend upon whether it was obtained in

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violation of either the federal or state statutes. Two situations will be considered here: (1) so-called "interspousal" [FN25] communications interceptions, in which a spouse intercepts communications between the other spouse and a third party who is not one of the parties' children; and (2) "child" communication interceptions, in which a parent intercepts communications between a child and a third person, usually the other parent.

Some courts have held that the federal statute is simply inapplicable to interspousal wiretapping. [FN26] However, the majority view, [FN27] which has been adopted in the Tenth Circuit, [FN28] is that the literal language of the federal statute does not exclude interspousal cases and, therefore, they are covered. In the interspousal case, there is rarely consent by one of the parties to the conversation. Thus, in most cases, at least in the Tenth Circuit, [FN29] interspousal...

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