In the past several years, I’ve received calls from a few people who asked if they can record someone after an auto accident. Illinois is a “two party state.” Meaning, both parties to a private conversation need to consent to an audio or visual recording. If you don’t obtain permission, you’ve violated the statute. Call our office at 847-305-4105 or email us for a free consultation on this topic.
The Illinois eavesdropping statute states in part:
- A person commits eavesdropping when he or she knowingly and intentionally:
(2) Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording . . . private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the conversation. (720 ILCS 5/14-2) (from Ch. 38, par. 14-2)
After an auto accident, one of the parties might be inclined to take an audio or visual recording of their conversation with the opposite party. Why would someone do this? Most people do it to try and record the other party admitting fault and/or to catch them lying.
If you take an audio or visual recording of the other party during a private conversation in a “surreptitious” manner (for example, hiding your cell phone in your pocket and recording your conversation with the other driver), you have committed a crime. Note that this does not apply to the recording of peace officers. That is an exception to the statute.
The recording you obtained will not be admissible and as such, all you will have accomplished is the commission of a crime.
If the conversation you were in was not “private”, meaning there were other people around and/or you were in a public place where it could be easily overheard, you may not have violated the statute.
Alternatives to recordings
Instead of trying to record someone after an auto accident, I suggest you immediately document anything the other person says in writing. The other party might apologize after the accident. If you were to document that he/she apologized while at the scene, that documentation/evidence might be admissible later.
Audio/Visual Recordings in General
This issue has arisen as a hot button issue lately with the revelation that President Trump’s attorney Michael Cohen recorded his conversations with the President regarding paying hush money to various women to cover up past infidelities.
Many people have asked whether what Cohen did is a crime. These recordings took place in New York. NY is a one party-consent state which means that only one party has to consent to the recording.
As such, Cohen may not have violated NY law. However, as an attorney he owed a duty to his client to protect attorney client communications. Recording a conversation with a client could be a breach of that duty. So, if nothing else, I would think Cohen will have issues with the state bar of NY.
Bottom line is that you should not record someone after an auto accident unless you provide them notice that you are recording them. If you are involved in a situation involving the recording of someone in Illinois, call our office for a free consultation at 847-305-4105.