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Sound and audiovisual recordings as evidence in a divorce case

In the course of my work as a private detective and legal adviser, I very often encounter clients’ questions regarding the possibility of using sound or audiovisual recordings in divorce cases.

The possibility of using sound or audiovisual recordings in civil proceedings, and therefore also in divorce cases, is determined by Art. 308 of the Act of November 17, 1964, the Code of Civil Procedure (Journal of Laws of 2016, item 1822, consolidated text). Pursuant to Art. 308 of the Code of Civil Procedure, evidence from other documents, in particular those containing video, audio or video and audio, shall be conducted by the court, applying the provisions on visual evidence and document evidence, respectively.

From the wording of Art. 308 of the Code of Civil Procedure clearly states that it is possible to submit evidence in the form of video, audio or video and audio recordings to the court.

Nagrania dźwiękowe i audiowizualne jako dowód w sprawie rozwodowej

Doubts about the use of recordings in court during a divorce case

A circumstance that raises doubts regarding the use of recordings in a divorce case is the issue of whether recordings made without the consent and knowledge of the person being recorded can be used, which is the most common situation when collecting evidence confirming the spouse’s infidelity.

First of all, it should be pointed out that when it comes to the taking of evidence by the court from the recording of conversations between the parties to the process, it should be pointed out that the Code of Civil Procedure does not prohibit the introduction of evidence from conversations recorded between the parties to the process.

When can recordings be presented in court as evidence in a divorce case?

The issue of the admissibility of using recordings in civil proceedings, and thus in divorce cases, was categorically resolved by the judgment of the Supreme Court of April 22, 2016, file ref. II CSK 478/15, in which the Supreme Court clearly ruled that it is permissible to use a recording made without the consent and knowledge of the recorded person as evidence in a civil trial, with the proviso that such evidence may only be disqualified by the circumstances in which the recording took place, if these circumstances clearly indicate a serious violation of the principles of social coexistence, e.g. by reprehensible use of a difficult situation, mental or psychophysical condition of the person with whom the conversation was conducted.

With regard to the possibility of using evidence from sound recordings – specifically in divorce cases – the Supreme Court took a position in the judgment of April 25, 2003, file ref. IV CKN 94/01, stating that making recordings of telephone conversations without the consent of one of the participants in the conversation does not completely disqualify the recording as evidence, if the authenticity of such material has not been effectively questioned and if it is not the only evidence showing the circumstances relevant to the case.

Who determines the authenticity of recordings in a divorce case

In the course of divorce proceedings, the court is first obliged to determine the authenticity of the recording, and if you use the services of a private detective operating in a detective and legal agency, the adjudicating court will have no problem, because the detective lawyer as a witness will confirm the authenticity of the recording recordings. Subsequently, the court is obliged to determine whether the person who made the recording did not manipulate the content of the recording and whether the recorded person’s statement was not provoked by the previous behavior of the recorder. The court is also obliged to determine the circumstances, purpose and manner of recording, i.e. when the recording took place, who made the recording, whether they recorded the entire conversation or only a fragment of it, why they recorded this particular conversation, whether it was an accidental or intentional recording. In this regard, the court will be assisted by a private detective who will reliably present the circumstances of the recording to the court.

It should be emphasized that the mere failure to obtain the consent of the recorded person to record the conversation with him or her and not informing him/her about the recording is not yet an illegal or fraudulent activity. Activation of recording devices in order to record a given conversation, without controlling its course and influencing the will of the person being recorded, is not misleading, which would result in obtaining a statement with the desired content. We deal with deceit only when the person conducting the conversation or a third party, before or during the recording of the conversation, provokes the person being recorded to behave in a certain way. If the behavior of the recording person or a third party (e.g. acting on behalf of the party) precludes the freedom of expression of the recorded person, which will be substantiated, then such evidence as unlawful should not be used by the court in civil proceedings.

Failure to inform a person about the recording of a conversation with him or her does not exclude the freedom of expression of that person, while the recording person cannot be accused of obtaining evidence fraudulently for this reason alone.

However, if the recorded person objects to the taking of evidence from the recording, he or she should demonstrate that the allegations raised by him/her are true and that the evidence from the recording, due to its content, circumstances or manner of creation, infringes its rights. The lack of consent of the recorded person to use the recording as evidence in the case, while the court determines that such evidence is lawful and authentic, does not constitute grounds for considering the evidence inadmissible. For example, in the divorce case under consideration, one of the courts of appeal assumed that if the recorded person did not effectively question the authenticity of the recording in the course of court proceedings, the recording may be used as the basis for assessing the behavior of one spouse towards the other spouse and the possibility of formulating a request for alcohol abuse by one of the spouses.

To sum up, it should be stated that it is possible to use evidence from recordings in a divorce case, even if the recordings were made without the knowledge and consent of one of the interlocutors. This view applies especially when the party cannot, or it is excessively difficult for it, to prove its arguments by other means of evidence, which are of decisive importance for the decision of divorce due to the fault of the other spouse. It is important that the recordings are made in such a way that their authenticity does not raise any doubts of the court. The authenticity of the recordings is ensured by a private detective from a detective and legal agency.