For two decades my clients have mostly been defendants in criminal cases, but once in a blue moon I represent a defendant in a civil case (although usually in connection with a prior criminal case). The mail I received recently from the court was in my handling one of those rare cases.

In this instance, the client was a witness in a murder trial from a few years ago. He was compelled to attend and testify, because he had a recording of the murder defendant. The defendant in that case had called my client and made some damning admissions. The call was made from Massachusetts, but answered in New Hampshire. My client insisted that his answering machine had picked up and started recording the conversation prior to his taking the call and talking with the murder defendant. The defendant admitted that an answering machine was involved, but said that the client had turned it on to capture the conversation (supposedly for later use, although that would have presumed some real on-the-spot thinking by the client).

The client was subpoenaed by the Commonwealth of Massachusetts. His immunized testimony and the recording were used at trial during which the criminal case judge ruled the recording was admissible. The murder defendant was convicted ( a life sentence) and the verdict was upheld on direct and collateral appeal. The defendant is still trying to get it overturned, but has now also brought a civil action against the client under the Massachusetts wiretap statute, MGL 272:99 (http://www.mass.gov/legis/laws/mgl/272-99.htm).

The client contacted me after the civil suit had been pending for a considerable time in the court system. I immediately filed a motion to dismiss. We argued, among other things, that the suit was frivolous as well as a lack of jurisdiction, brought for improper purposes, equivalent to retaliatory witness tampering, no damages, defendant/plaintiff still convicted, three types of estoppel, etc. The court declined to rule on the pleadings and had me traveling a couple of hours just to argue what was plainly on the pages of my motions. The waste of time was staggering.

The envelope that I opened on Saturday contained two sheets. The first was the notice of trial in November of 2010. I thought the worst until I turned to the second sheet - the order on the motions. Motion to dismiss granted, but fees and costs denied (oh well, what were we going to get - the guy's canteen money?). Apparently the trial notice was still in the mail pile when the order granting the motion was issued.

The reason I pass this along is because this issue crops up frequently in our practice, in one form or another. I have argued the application of our wiretap statute (NH RSA 570-A) at the Superior Court level and before our Supreme Court, but always in connection with recordings that the State wanted to use against criminal clients. Similar laws from around the country (including the Massachusetts and New Hampshire statutes) have been in the news recently, with the police trying to slam citizens who capture audio (or video with audio - watch out for that) exposing their misdeeds. You have probably seen reports, including one about audio and video captured on a motorcycle helmet cam. This trend seems to run counter to the legislative histories, since most of these laws were put in place to protect the citizen against state action (warrantless recordings by police), but the wording of most of these statutes is amenable to such use against citizens.

In my case (the New Hampshire recording of a call originating in Massachusetts), the Superior Court agreed with us on the jurisdiction issue. The short order from the court cited Massachusetts case law ruling that an interception in another state cannot be the basis for a suit under MGL 272:99. The court did not address the other issues. There are many issues arising from these statutes which should be of concern to us in our daily practice. I am sure that you have all advised clients about our New Hampshire statute, especially when the client mentions an intent to record, or tells you about an existing recording that was made without a party's knowledge and/or consent. I tell clients (and even other witnesses) that secret audio (or video with audio) recording is illegal and that if one party does not know about the recording, it's a misdemeanor, and if two or more parties are recorded, it's a felony. Now I will tell them this story and point out that they might get sued, even if the other party is the villain and/or gets convicted. Any of you who also practice in the Commonwealth of Massachusetts should look at both statutes (NH and MA), because there are differences, both obvious and subtle. I am of the opinion that the MA statute might have provided for liability in this situation, if the call and the recording had both occurred in Massachusetts. Even without actual damages, MGL 272:9 has statutory damages of $100 per day or $1,000, whichever is higher. Here is how the civil remedy section reads:

Q. Civil remedy.

Any aggrieved person whose oral or wire communications were intercepted, disclosed or used except as permitted or authorized by this section or whose personal or property interests or privacy were violated by means of an interception except as permitted or authorized by this section shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest, and shall be entitled to recover from any such person-

1. actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher;

2. punitive damages; and

3. a reasonable attorney's fee and other litigation disbursements reasonably incurred. Good faith reliance on a warrant issued under this section shall constitute a complete defense to an action brought under this paragraph.

The statute can be violated in numerous ways:

Interception, oral communications prohibited. Editing of tape recordings in judicial proceeding prohibited. Disclosure or use of wire or oral communications prohibited. Disclosure of contents of applications, warrants, renewals, and returns prohibited. Possession of interception devices prohibited. And there is a sixth way to be liable - Conspiracy to do any of the other things prohibited by the statute.

Although the New Hampshire statute's civil remedies are almost identical (e.g., $100 per day and $1,000, whichever greater), the rest of the statute is not the same, and contains quite a few land mines for us and our clients. Be careful my friends.

Sven D. Wiberg

Wiberg Law Office, PLLC

2456 Lafayette Road, Suite 7

Portsmouth, NH 03801

(603) 686-5454

sven@nhcriminaldefense.com