Can I Record Someone After an Auto Accident – IL Eavesdropping Law

In the past several years, I’ve received calls from a few people who asked if Eavesdropping Law Illinoisthey 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 Statute

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)

The Situation

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.

Recorded Statement – A Risky Gamble

Tens of thousands of auto accident claims are filed every day with insurance companies. Shortly after each of those claims, the accident Auto Accident Recorded Statementvictim will get a call from an insurance adjuster looking for a recorded statement about the accident. If you are involved in an accident and you would like a free consultation to discuss whether you should give the recorded statement, call our office at 312-848-9783.

What is a Recorded Statement?

A recorded statement is a tool used by insurance companies like Allstate or State Farm to figure out what happened in an auto or other accident. An insurance adjuster, who is an Allstate or State Farm employee, will call you over the phone and ask you questions about the accident. The questions will seem simple and you may feel compelled to answer as you are attempting to get the insurance company to pay for your damages and/or injuries. Be Careful!

Do I Have to Give a Recorded Statement?

The simple answer is no. You do not have to give a recorded statement to the insurance company for the vehicle who caused your accident. In fact, we advise (almost) all our clients not to give recorded statements. Why? The recorded statement is a trick used by insurance companies to get you on the record.

It seems simple. At first, the insurance adjuster is nice and sincere in his or her efforts to help you. However, what they are trying to do is pin you down to a story. Once you have committed, the insurance adjuster (or their defense attorneys) will use that information later to poke holes in your case.

For example, if you stated during a recorded statement that you were positive you driving 35 miles per hour at the time of the accident, you are now locked into that speed. If you change your story at all during your deposition (sworn statement before trial) or during cross-examination (while at trial), the insurance company will capitalize on the change in your testimony to discredit you.

Or, perhaps during the recorded statement you forgot to tell the adjuster that your shoulder was in pain following the accident. A year later when you attempt to obtain compensation for your shoulder pain, rest assured the adjuster or defense attorney will point out that you did not complain of shoulder pain after the accident. To learn more about documenting your injuries, check out this article.

In most cases, the insurance adjuster can make a determination of “liability” or responsibility for the accident from the police report, from speaking to their insured or by talking to witnesses. Often the facts help dictate fault as well. For example, if you were driving straight and the defendant took a left-hand turn in front of you, in most (though not all) cases, they will be responsible for failing to yield the right of way. And of course, there is little opportunity to deny responsibility if you were rear-ended in the accident.

When Should You Give a Recorded Statement?

If you file a claim with your own insurance company after the accident, you have a duty to cooperate with your insurance company in investigating the accident. In that situation, you need to give a recorded statement.

However, beware of your own insurance company as well. If the defendant who hit you was uninsured or underinsured, meaning he or she had a small insurance policy, you may have to go after your own insurance company for compensation through your uninsured or underinsured motorist coverage. In that situation, your insurance company will go from being helpful to being your opponent in a split second. Then, they will be the ones who use your recorded statement against you.

What to say in a Recorded Statement

If you do give a recorded statement, here are a few tips for what to say or not to say:

  • Don’t be too precise: Instead of saying you were driving 35 miles per hour, give an estimate. “I was driving around 35” or “I was driving between 30 and 35 miles per hour.”
  • Always be honest: if you lie, the insurance company will find out and use it against you. This will jeopardize your credibility with the insurance company or the jury.
  • Limit the scope of the recorded statement: Agree to talk about the facts of the accident but not your injuries.
  • Do NOT guess. If you don’t know an answer, say so.
  • Do NOT sign a medical release or any other document. You will provide them your medical records when you see fit.
  • Keep your answers brief. Do not expound on anything. Simply answer their questions as briefly as you can and then stop talking. The more you talk the more they have to use against you.

Conclusion

If you are contacted by an insurance company after an accident, we recommend talking to an attorney prior to giving a recorded statement. For a free consultation, contact us today at 312-848-9783.