If you are a servicemember thinking about secretly recording a conversation with law enforcement, your commander, or other military officials, that’s a sign that you probably should be talking to an attorney who specializes in military legal issues.
Modern technology has given us new and powerful tools to potentially protect ourselves by documenting what happens to us. YouTube is awash in videos of citizen interactions with law-enforcement, and there are millions more clips on private devices, made by individuals who want to protect their own interests. Is that an option for military personnel?
The answer is no. Unlike the civilian population, there are additional legal authorities that allow the government, in the form of the military command, to restrict and regulate the actions of the individual person when that person is a military servicemember. There is no Constitutional right to record an interview with the police, and it is absolutely within legal authority for military law-enforcement to prohibit the use of electronic devices (or even the possession of electronic devices) inside a police station or investigators office.
If you secretly record a conversation, you might also be committing additional crimes, depending on what state you’re in at the time. Some states have what is called “two party consent.” These states make it a crime to record someone else without that person consenting (or at least being aware the recording is being made at the time). Recording laws vary from state to state, and some distinguish between video and audio recordings, but the bottom line is that you could potentially be breaking more laws if you try to record a conversation on the sly.
Trying to secretly record your commander is a bad idea for another reason: it may turn the command against you (or motivate them to take harsher action against you). If your command is already looking at you as a possible criminal, the last thing you want to do is give them an excuse or way to punish you for something else.
That said, it is a good idea to document (take notes) your interactions with your command or law enforcement when you’re facing adverse action. We ask our clients to share that information with us so we can best represent them. If you have an interaction that is particularly significant, you should type up a summary immediately afterwards. Include details about when it happened, what happened during the interaction, who was there, and who said what. These notes and entries can be saved as formal memorandum-for-record, but any format is fine. An easy way is to type it up in an email and send it to yourself. Capturing details is always a good idea… just don’t pull out the phone as the way of doing it!
If you find yourself even considering circumstances where you are contemplating secret recording or anything even close, you should seek a free confidential legal consultation with a qualified law firm
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