Legal Writing

Office Memo
State v. Casey

Andrew Albaugh 3/27/2012

To: Dr. Carol Bast From: Andrew Albaugh Re: Spouse secretly taping spouses telephone and face-to-face conversation. Date: April 3rd, 2012 FACTS: Anthony Anthony is suspicious of his wife (Casey Anthony) and puts a sound activated recorder in the house and on the phone lines to record all incoming, outgoing, and in-house conversations. These recordings are made without his wifes knowledge or consent. His machines record a phone call made by Casey Anthony to Jose Baez in which they discuss the arrangements of hiring Jose to kill Anthony. Casey and Jose proceed to set a meeting for 10:00 A.M. the next morning. During this phone call, Jose demands assurances that he will be paid. Casey assures him that she has the money and will pay half upfront. The next morning they meet in Casey and Anthonys home and the wife gives Jose the plan to kill Anthony. Casey states that she will leave in the afternoon and at 5:00 P.M. Jose should enter the house through the back door, kill Anthony, then call her. At this point Casey will return home, pay Jose the other half of the money, and after Jose has escaped she will call the police. Jose agrees to this plan and Casey pays Jose half of the money upfront. Later that day, Jose returns to the house through the back door and murders Anthony. Casey returns and confirms that her husband is dead and pays Jose the rest of the money, then proceeds to call the police. Over the course of the investigation, the state uncovers the conversations and hopes to use them against Casey. Casey seeks to have the conversations suppressed.

ISSUES: 1. Should the court suppress the telephone conversation of Casey Anthony and Jose Baez that Mr. Anthony recorded? 2. Should the court suppress Casey Anthonys in-home face-to-face conversation with Jose Baez that the husband secretly taped? ANSWERS: 1. The court should suppress the recorded telephone conversation because neither party to the conversation consented to being recorded and playing the tape of the conversation violates a Florida statute. 2. Casey and Jose had an expectation of privacy, which was reasonable because they were conversing in Caseys home; therefore the court would suppress the face-to-face conversation because it would be illegal for the prosecution to play the tape at trial.

REASONING: The Anthony facts illustrate the inherent conflict between protecting the suspects rights and convicting one guilty of a serious crime. Due process requires that evidence-collecting protocols be followed so that the defendants basic human right to privacy is respected. A court may face a difficult decision if evidence detailing a murder plan in the defendants own words was collected illegally. Such is the case in Anthony, where Casey Anthony was recorded discussing details of the crime over the telephone and in a private conversation within her home. However, these conversations were recorded without the consent of the conversing parties. The prosecution has a duty to protect society by convicting one who commits a serious crime such as
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murder; nevertheless, a suspect is protected against the prosecution using illegally-obtained evidence. Based on this protection against illegally obtained evidence being used at trial, Casey Anthony seeks to suppress the recorded conversations to protect her privacy on the telephone and in her own home. In reaching the answers the court will have to review a number of Florida statutes and two cases. Markham v. Markham, 272 So. 2d 813 (Fla. 1973); State v. Walls, 356 So. 2d 294 (Fla. 1978); 934.02(1), 934.02(2), 934.03(1), 934.06, Fla. Stat. (2011). REASONING FOR ISSUE 1: In considering the issue of the recorded telephone conversation, the courts must look at case law such as Markham for guidance. Markham was a civil dissolution of marriage in which Mr. Markham recorded a telephone conversation without his wifes consent. He then attempted to introduce the recorded conversation as evidence and his wife moved to suppress the conversations. The main question in this case was whether or not the court should suppress the telephone conversation. Markham, 272 So. 2d at 813. The case of Markham v. Markham has many important similarities to the facts of the Anthony case. In both cases, one party attempted to introduce a recorded telephone conversation as evidence. The husband in each case installed a recording device in the telephones that recorded all incoming and outgoing calls. However, both recordings were made without the consent of either party to the conversation. The similarities are very important in determining whether or not Markham is mandatory authority for Anthony, however, one must also consider the differences. The most notable difference between the two cases is that Markham is a civil dissolution of marriage, whereas Anthony is a criminal murder case. Likewise, the telephone conversation in Anthony explicitly discussed the commission of a crime, while the nature of the telephone conversation in Markham is unknown. Despite their seeming importance, none of
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these differences are applicable in establishing a rule of law. Therefore, Markham is a mandatory authority for Anthony because of the significant similarities and inapplicable differences. The rule of law established by Markham states, [t]he subject statute does not provide that a subscriber-husband is permitted to wiretap. It states unequivocally that when none of the parties to the communication has consent, such interception should allowed only upon a courts order. Id. at 814. Because Markham is a mandatory authority for Anthony, this rule of law should be upheld in Anthony. To reach this conclusion, the court also examined three statutes: 934.02(1), 934.03(1), and 934.06. Florida Statute 934.02(1) states that, [w]ire communication is any aural transfer made in whole or in part. . . by the aid of wire. . . between the point of origin and the point of reception. In simpler terms, wire communication is a conversation that can be heard by the human ear and that is transmitted at some point through a wire. This definition applies to Anthony because there was a telephone conversation between Casey and Jose, the conversation was audible to them, and the conversation was transmitted at some point through a wire; therefore, the telephone conversation is a wire communication. In addition, 934.03(1) provides, [e]xcept as otherwise specifically provided in this chapter, any person who: (a) [i]ntentionally interceptsanywirecommunication shall be punished as provided in subsection (4). Unless otherwise stated, someone who deliberately tapes a telephone call conversation has committed a third-degree felony. Another portion of Florida Statute 934.03(1) states that [e]xcept as otherwise specifically provided in this chapter, any person who[i]ntentionally discloses..to any other person the contents of any wirecommunication, knowing or having reason to know that the information was obtained through the interception of a wirecommunication in violation of this subsection has
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committed a third degree felony. Someone who deliberately plays the tape of the recorded telephone call or private face-to-face conversation, knowing, or having reason to know that the tape was illegally made, has committed a third-degree felony. Mr. Anthony deliberately taped Casey Anthonys telephone conversation with Jose Baez; in doing so, Mr. Anthony committed a third-degree felony. In addition, if the prosecution were to play the illegally recorded conversation they would also be committing a third-degree felony. Finally, Florida Statute 934.06 provides, Whenever any wire... communication has been intercepted, no part of the contents of such communication and no evidenced derived therefrom may be received in evidence in any trial...if the disclosure of that information would be in violation of this chapter. A tape recorded conversation cannot be used as evidence if playing the tape would violate 934.03(1). Because playing the tape of the telephone conversation between Casey Anthony and Jose Baez would violate 934.03(1), the prosecution cannot use the tape-recorded telephone conversation as evidence. CONCLUSION FOR ISSUE 1: Markham is mandatory authority for Anthony because the cases have strong similarities and minor differences. Therefore, the court in Anthony would not recognize any such exception that allows a spouse to record a telephone conversation. All three statutes apply to Anthony. Mrs. Anthonys telephone conversation with Jose Baez falls within the definition of a wire communication under 934.02(1). The conversation was recorded illegally under 934.03(1). The court will suppress the telephone conversation because of 934.06.

REASONING FOR ISSUE 2:

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Since Anthony involves two different types of recordings, case law concerning the recording of face-to-face (oral) conversations is necessary to make a good decision. The Walls case is a fantastic case to examine the issue of recorded oral conversations with. The case was a criminal case in which Francis Antel (the alleged victim) recorded extortion threats made to him at his home. These recordings were made in order to use the conversations as evidence at trial. However, the recordings were made without the consent of all of the parties. The defendants then attempted to suppress the recordings. Walls, 356 So. 2d at 295. The Anthony case shares many important similarities with the Walls case. Both cases involved a crime that happened in the victims home and in each case the conversation in which the crime was discussed was recorded by the victim of the crime. The recorded conversations in each case were private face-to-face conversations. Also, both prosecutions are attempting to use the recorded conversations as evidence while the defense is trying to suppress the recorded conversation. However, there are some differences worth noting. In the Walls case, the victim is still alive to testify against the alleged perpetrators while Mr. Anthony cannot testify because he was murdered. Furthermore, in Walls, the person taping the conversation was a party to the conversation unlike the private conversation between Casey Anthony and Jose Baez. Despite the seemingly important differences, Walls is still a mandatory authority for Anthony.
The holding of the Walls case states, the statutes in question are constitutional as applied to this cause, and accordingly, we affirm the judgment of the trial court suppressing the subject electronic recording. Id. at 297. The reason for this is because the court found that there is no exception to

the statutes that would allow the taping. Since Walls is a mandatory authority for Anthony, the decision should stand.

The statutes examined in creating a rule of law in Walls were: 934.02(2), 934.03(1), and 934.06. Under Florida Statute 934.02(2), Oral communication means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. This means that oral communication is a face-to-face conversation where a party to the conversation believes that the conversation is private and that belief is reasonable. Just like in Walls, the conversation in the Anthony home between Casey and Jose was an oral communication. It was an oral communication because it was a face-to-face conversation, in which Jose and Casey both thought that the conversation was private, and the belief was reasonable because they were alone in Caseys home. Florida Statute 934.03(1) states, Except as otherwise specifically provided in this chapter, any person who. . .[i]ntentionally intercepts. . .any. . .oral. . .communication;. . .shall be punished as provided in subsection (4). Someone who deliberately tapes a private face-to-face conversation has committed a third-degree felony. The statute goes on to State: Except as otherwise specifically provided in this chapter any person who. . .[i]ntentionally discloses. . . to any other person the contents of any oral. . . communication, knowing or having reason to know that the information was obtained through the interception of [an] oral . . . communication in violation of this subsection. . . shall be punished as provided in subsection (4). Someone who deliberately plays the tape of the recorded private face-to-face conversation, knowing, or having reason to know that the tape was illegally made, has committed a thirddegree felony. Both parts of the statute apply to Anthony facts as well. Mr. Anthony deliberately taped Casey Anthonys private face-to-face conversation with Jose Baez; in doing so, Mr. Anthony committed a third-degree felony. Furthermore, the prosecution wants to play the tape of the recorded private face-to-face conversation at Caseys trial, but the prosecution should
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know that the tape was illegally made. According to this statute, the deliberate playing of the tape would be a third-degree felony. Finally, Florida Statute 934.06 provides: whenever any . . . oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . if the disclosure that information would be in violation of this chapter.A tape recorded face-to-face conversation cannot be used as evidence if playing the tape would violate 934.03(1). Because playing the tape of the private face-to-face conversation would violate 934.03(1); the prosecution cannot use the tape of the private face-to-face conversation as evidence. CONCLUSION FOR ISSUE 2: Because of the significant similarities between Walls and Anthony, Walls is mandatory authority and the result in Anthony should be the same as the result in walls; the conversation taped in the home was protected under section 934.02(2) as oral communication. Therefore, the court in Anthony would suppress the conversation recorded inside Caseys home under section 934.06; it was illegal under section 934.03(1) for the husband to tape the private conversation without the wifes consent. It would also be illegal under section 934.03(1) for the prosecution to play the tape at trial.