I'm a prosecutor with the Attorney General's Office in Arkansas. I am doing some research regarding wiretapping and noticed that Texas' state law on wiretapping, like the federal, has no exemptions for spouses. Is this offense ever pursued by prosecutors in Texas in instances of divorce, etc.? What if the recorded conversations contained evidence of a crime on the part of tne non-consensually tapped spouse?
Prosecute everybody?

Wiretapping is not really a good way to describe what happens. Typically, we see cases in which spouse A is preparing to become an ex-spouse from spouse B by recording conversations. That's OK if spouse A is a part of the conversation, as that person can consent to the recording without notifying the other party to the conversation (unlike in Maryland where Linda Tripp learned there had to be consent by both parties).

But, the problem arises when spouse A puts a recording device under a bed or on a phone without spouse B and spouse B's companion knowing they are being recorded. During the divorce proceedings, spouse A whips out the recording to use against spouse B. Then spouse B gets a ruling from the trial judge that the recording is illegal and the contents are dumped.

Then spouse B wants the prosecutor to pursue a criminal case. Not a pleasant experience.

[This message was edited by John Bradley on 02-20-04 at .]

That's how I figured it went down - given the illegality, why would any divorce attorney who was worth what he was being paid not say something to the taper? I mean y'all have a case on it. Collins v. Collins So, if it's like plotting murder, does the tape establish probable cause or is it admissible in a criminal prosecution versus a divorce proceeding? In Arkansas the tape would be admissible if it demonstrated criminal activity. We've used it in a probation revocation to send an ex-husband back to prison after tapping ex-wife's phone. Where the rubber hits the road, though, I figure everyone's got better things to do, but wanting to know the opinion down there.

Off the top of my head, I'd say it's probably not admissible (fruit of the poisonous tree and all). But I could easily be wrong since I've never researched the issue.