Court Declines to Ban Teen's Tape of Alleged Rape Apology

, New York Law Journal

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A cassette tape in an evidence bag

In an era when teens routinely record their musings and post them online for the world to see and hear, it makes little sense to bar prosecutors from using a minor's recorded conversation with her father in a rape case, a judge in Brooklyn has held.

At issue in People v. K.B., 0544-2011, was the admissibility of a recording made by a 14-year-old girl which purportedly implicates her father.

Records show that the girl, who claims she was raped by her father on Jan. 1, 2011, recorded a conversation with the defendant in which he purportedly apologizes to her and asks her not to turn him in. The recording was made before the police were involved and was not made at the request of law enforcement.

The question before Acting Brooklyn Supreme Court Justice Michael Gary was whether a minor can consent to the recording of her own conversation, an issue that the Appellate Division, Third Department, explicitly left open in the only appellate ruling on point, People v. Bastian, 125 AD2d 909 (1986).

Bastian presented a fact pattern similar to that in K.B.

In that case, another 14-year-old girl recorded a telephone conversation with a 61-year-old man who was charged with sodomy and other felonies and ultimately pleaded to a misdemeanor endangering count.

But a key difference the 1986 and 2014 cases is the fact that in the former matter the victim's parents were present during the recording and implicitly consented on their daughter's behalf. In K.B., the girl acted entirely on her own.

The Bastian court found no need to "reach the [issue] of whether the complainant had the capacity to give a valid consent in the absence of her parents' consent." Gary addressed that issue in K.B. in response to a motion to preclude submitted by defense counsel Douglas Rankin of Brooklyn.

Rankin had argued that the tape could not be used because it was made in violation of CPLR 4506.

Under that provision, eavesdropping evidence is inadmissible. Eavesdropping is defined in Penal Law §250.05 as the mechanical overhearing of a communication without the consent of at least one party to the conversation. The defense argued that the alleged victim, being a minor, could not consent. Therefore, the defense maintained, the recording constituted eavesdropping and is inadmissible.

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