Although the officer objected, Cotton’s video wasn’t illegal.
Wisconsin is among 38 “one-party consent” states which allow individuals to record conversations without informing another party that they are doing so.
Cotton’s ballgame footage was largely recreational, but attorneys say audio and video recordings of traffic stops or home searches by clients are increasingly common.
“We’re seeing it every day with the expansion of the ability to record interactions with law enforcement,” Cotton said. “There are hundreds of those videos on You Tube.”
The Kuchler & Cotton criminal defense lawyer had a federal case in which his clients, who were charged with felony firearm possession, recorded several officers who entered their residence illegally.
The case was dismissed prior to a motion hearing and Cotton said the cell phone recordings likely played into the government’s decision not to pursue the charges.
“Had my clients not had the ability to quickly push a button on their phones, who knows what might have happened,” he said. “I can say that the government certainly would not have dismissed the case.”
Madison attorney Charles W. Giesen had similar success with recorded evidence in a drunken driving stop.
After being pulled over on suspicion of OWI, his client recorded the stop on her cell phone and the account revealed that the officer did not issue a field sobriety test and that the client was coherent.
“It was determinative in support of the court’s finding of no probable cause,” said Giesen, of Giesen Law Offices SC.
The use of video recording equipment during police encounters is nothing new, as many squad cars have mounted cameras, but a 2008 state Supreme Court ruling offered some clarity on the admissibility of recorded audio and video evidence by the public.
In State v. Duchow, 2008 WI 57, 749 N.W.2d 913, the parents of a minor with Down syndrome, placed a voice-activated recorder in his backpack, because they feared he was being abused by Brian Harold Duchow, the driver of the boy’s school bus.
The court ruled that the recording was admissible and there was no reasonable expectation of privacy in threats made on a public school bus.
“It’s a new issue for Wisconsin which is a one-party consent state, so if police can do it, why not the public,” said criminal defense attorney Raymond M. Dall’Osto. “If it gives you the best evidence of the actual on-scene display, how can that be against the best interests of justice?”
Appleton defense attorney Bradley J. Priebe agreed.
As a former judge and prosecutor, he said courts are coming to the realization that digital media makes evidentiary selection a “two-way street.”
Priebe, who recently opened his own office, still works part-time as a city prosecutor in Oshkosh and said the accused routinely come to municipal court with recorded evidence on their cell phones.
“It’s gotten so common that defendants approach judges and hand over their cell phone, tell them how to hit play and the attorneys sit and watch it,” he said. “Sometimes it makes all the difference.”
Law-enforcement agencies take the one-party consent into consideration as part of their training. Milwaukee Police Department Public Relations Manager Anne E. Schwartz said officers are trained to behave as though each citizen contact is being recorded and the public has the right to videotape the action of the police department, so long as it does not interfere with the investigation and is outside the borders of police tape at a crime scene.
Schwartz added that she isn’t aware of any movement to modify or change the current laws to restrict the ability of the public to record officers.
While Priebe often encourages clients to have a recording device handy, he and others admit that those accounts can incriminate defendants as much as they exonerate them.
Video footage shot by a third party contributed to a conviction in a homicide case defended by Dall’Osto.
“I was kind of hoisted by my own petard,” said the Gimbel, Reilly, Guerin & Brown attorney. “Part of the thing is that these recording devices are so ubiquitous now.”
But generally, attorneys said the more information available, the better.
In his experience, Cotton said cell phone recordings often help move cases along though the system because audio or video evidence replaces the “my word against yours” argument.
“Before now you never really knew what was said and recordings can really help to expedite cases,” he said.
Jack Zemlicka can be reached at firstname.lastname@example.org.