Generally, yes. Lawfully obtained relevant evidence is generally admissible. In Missouri, it is legal to record a conversation if at least one party to the conversation knows about and consents to the recording.
In other words, if a person secretly records a conversation with another person, that recording is lawful. If a person secretly records a conversation two unaware people are having, that recording is unlawful.
Missouri Recording Laws
Missouri law is murky regarding recording in-person communication. The applicable statute makes it unlawful to record an in-person conversation if the recording device “transmits communications by radio or interferes with the transmission of such communication.” Mo. Ann. Stat. § 542.402.1(2). It is unclear what recording devices, if any, would be lawful to use and Missouri courts have not provided guidance. For this reason, the safest approach is to obtain permission from all parties to an in-person communication before recording it.
The law is clearer regarding telephone or electronic communication. Missouri’s wiretapping law is a “one-party consent” law. In Missouri, it is illegal to intercept or record any “wire, oral, or electronic communication” unless at least one party to the conversation consents. Mo. Rev. Stat. § 542.402.2. Once a party consents to record a telephone conversation, recording it is lawful. But a person cannot use even a lawfully obtained recording to commit and criminal or tortious act. Mo. Ann. Stat. § 542.402.2(3).
Missouri law defines a wire communication as one transmitted by the aid of “wire, cable, or other like connection between the point of origin and the point of reception.” Mo. Ann. Stat. § 542.400.12. Missouri courts have provided mixed interpretations of this definition. One appellate court ruled that the law applies to a phone call between a cellular phone and a landline. Lee v. Lee, 967 S.W.2d 82 (Mo. Ct. App. 1998). In contrast, another appellate court found that radio signals from cordless home telephones, from the handset to the base, were not wire communications under the eavesdropping law. Missouri v. King, 873 S.W.2d 905 (Mo. Ct. App. 1994). Missouri courts have also not ruled on whether the law would apply to text messages between cell phones. In short, the Missouri law has not yet adapted to a wireless world.
Nonetheless, recording texts or cell phone calls is legal in Missouri if at least one party consents.
Illegally recording, intercepting, or divulging the contents of any private communications is a felony in Missouri. Penalties include up to four years in jail and a fine of up to $10,000. Mo. Ann. Stat. §§ 558.002, 558.011. Disclosing an unlawfully recorded conversation is also a felony.
A victim can also pursue civil damages against a person who breaks this law. Anyone whose confidential oral, wire, or electronic communications are unlawfully intercepted, disclosed, or used may recover the greater of actual damages, $100 per day, or $10,000. Punitive damages and attorney’s fees are also recoverable. Mo. Ann. Stat. § 542.418.
Federal Laws and Interstate Recordings
The federal Wiretap Act makes it illegal to secretly record an oral, telephonic, or electronic communication that the conversing parties reasonably expect to be private. 18 U.S.C. § 2511.
However, a recording otherwise in violation of the Wiretap Act is legal if one person to the conversation consents to the recording, or the person making the secret recording is authorized by law. There is also an exception allowing employers to record phone calls on employer-owned phones provided to employees.
People also often want to know if they can record the police. The U.S. Court of Appeals for the Eighth Circuit, which includes Missouri, has not directly addressed a First Amendment right to record public officials. But it did recently note with approval that “every circuit court to have considered the question has held that a person has the right to record police activity in public.” It is likely the Eight Circuit would agree with the other jurisdictions. Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020).
Admissibility of Recorded Conversations in Missouri
Recorded conversations can be used as evidence so long as they were not illegally obtained.
How an Attorney Can Help You
If you have a question about whether you can record a conversation or whether someone else’s recording can be used against you, Davis Business Law would love to help you. Our Missouri business attorneys frequently handle situations like these, such as recordings made in business disputes with partners or customers. Call us today at (913) 352-2056. You can also contact us online for a free consultation.