Regina Keenan |

On December 11, 2014, the Florida Supreme Court unanimously decided McDade v. State (13-1248).

McDade was arrested and charged with various sex crimes after his then sixteen-year-old stepdaughter (Alleged Victim) reported to the police that he had been sexually abusing her since she was ten years old. The Alleged Victim provided law enforcement with two recordings of her conversations with McDade that supported her testimony of solicitation and child sexual abuse. At trial, McDade objected to introduction of the recordings.

The Supreme Court applied the evidentiary prohibition in chapter 934, Florida Statutes (2010). In chapter 934, the Florida Legislature found that:

In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of intrastate commerce, it is necessary for the Legislature to define the circumstances and conditions under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings.

Section 934.01(2), Fla. Stat. [Emphasis added.]

Because this case involves an audio recording, the Court first had to determine whether the recordings are an “oral communication,” which means:

[A]ny oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

Section 934.02(2), Fla. Stat. [Emphasis added.]

In this case, the Alleged Victim made recordings with a concealed device in McDade’s bedroom without his knowledge or consent. The Court concluded the recordings of McDade were “oral communications” under chapter 934 because McDade had the expectation that his communications were not subject to interception and that the facts justified that expectation.

The Court next found that the recordings were unauthorized interceptions because “[n]one of the exceptions [in section 934.03(2)] allow for the interception of conversations based on one’s status as the victim of a crime.” They were prohibited as evidence in court proceedings, and their introduction at trial constituted reversible error. Section 934.06, Fla. Stat.

The Court compared two of its previous cases to support its exclusion of the recordings. In State v. Walls, 356 So.2d 294 (Fla. 1978), the Court applied chapter 934 and prohibited evidence of a recording of alleged criminal activity of extortionary threats made personally by the accused at the alleged victim’s home, as there was a justified expectation that the communication would not be intercepted. Conversely the Court in State v. Inciarrano, 473 So.2d 1272 (Fla. 1985) permitted an audio recording of a murder into evidence. The recording took place in a quasi-public area, in plain sight of a microphone, and was near and accessible to bystanders. Therefore, the recording was not an oral communication governed by chapter 934 as there was not justified expectation by the accused that the recording would not be intercepted.

The Court also found that the boyfriend’s testifimony that the Alleged Victim told him she was sexually abused should have been excluded as hearsay

Thus, the Court concluded that the recordings should have been suppressed under section 934.06 and the boyfriend’s testimony should have been excluded. The opinion of the Second District Court of Appeal in McDade v. State, 114 So.3d 465 (Fla. 2d DCA 2013) was quashed, the case was remanded to reverse McDade’s convictions and sentences, and the Court found that McDade was entitled to a new trial.

Secret Recordings Made by Alleged Victim of Sexual Abuse Prohibited As Evidence

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