The Admissibility of Illegally Obtained Evidence in Family Law Cases and Related Ethical Issues

• Author: Nicholas G. Himonidis
• Pages: 32-35

32 FAMILY ADVOCATE www.shopaba.org

The Admissibility of

Illegally Obtained Evidence

in Family Law Cases and Related Ethical Issues

BY NICHOLAS G. HIMONIDIS

What Constitutes “Illegally O btained”

While situations can and do arise involving almost any type

of evidence being “illegally obtained,” the most common

situations of “illegally obtained” evidence in family law cases

involve illegally intercepted electronic communications and

illegally recorded conversations.

Matrimonial litigants often convince themselves that the

key to a successful outcome is getting their hands on their

spouse’s data, particularly emails, texts, and other electronic

communications, or secretly recording their spouse’s conver-

sations. Under federal law, and in most states, it is legal to

secretly record a conversation to which one is a party;

however, in roughly ten states, the consent of all parties to

the conversation is required to make it legal. In all states, and

under federal law, however, secretly recording a conversation

without the consent of at least one party (commonly known

as eavesdropping or wiretapping) is a criminal oense.

Federal criminal statutes and the penal laws of most states

also criminalize, in one form or another, the interception of

“electronic communications” without the consent of at least

one party. is includes emails, texts, and other forms of

electronic messaging. Although most states, and the federal

There is more than money at stake in most family

law cases. e emotional forces at play can provide

strong motivation for parties to seek out, sometimes

by any means possible, evidence they believe will

“vindicate” their position; prove they are “right” and

the opposing party is “wrong”; or show that they are the better

parent, that they have been “cheated on,” or “cheated out,” of

their fair share of the marital assets. Aggressively seeking out

evidence is one thing. But zealous (sometimes obsessive) eorts

to obtain “vindicating” evidence by conduct that crosses legal

boundaries is happening with alarming frequency in family

law cases. ere are many issues raised when this occurs, but

this article will focus on the question of whether such evidence

may still be admissible in the case, and what, if any, legal and/

or ethical responsibility counsel bears in these situations. e

answers to these questions are not as straightforward as one

might expect. Like so many other questions in the law—the

answer is basically “it depends.” It depends to some extent on

the jurisdiction you are in, but even more so on the specic

type of evidence in question, what the evidence is being oered

for, and in what specic type of proceeding (e.g., divorce, child

custody, or child protection proceeding) it is being oered.

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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