비밀녹음의 법적 성격과 그 형사법적 쟁점

The Supreme Court treats secret recordings by a third party as a crime. But it does not punish a secret recording made by a party to the conversation. This rule is often misunderstood. Some people think it means “the recording is allowed” or “the recording is lawful.” For a long time, the Supreme Court applied only the hearsay rule to such recordings. It did not apply the exclusionary rule on illegally obtained evidence. However, recently the Court changed its view. It held that a party’s recording can also violate the speaker’s right to voice. So the recording can be an illegal collection of evidence, unless an exception applies. A violation of another person’s right to voice should be seen as unlawful. This is true whether the recorder is a third party or a party to the conversation. The next question is whether a party’s secret recording should also be punished. Today, secret recordings are too common. So it may be necessary to treat these recordings as an intrusion into “non-public conversations.” But this interpretation may discourage whistleblowing or recordings for self-protection. In such cases, the law can allow broader justifications or exemptions. This can balance the competing interests. Secret recordings that violate another person’s right to voice should be excluded as evidence. This applies unless the illegality is justified. But the types and degrees of illegality vary widely. So it is difficult to exclude all such evidence in one uniform way. For this reason, some scholars support a balancing test. They compare the private interest harmed with the public interest in enforcing criminal law. Here, the seriousness of the crime becomes important. However, this balancing test can lead to arbitrary decisions. The comparison of interests itself is problematic. It is also problematic to let the seriousness of the crime decide the admissibility of evidence. Crimes differ greatly, and there is no clear standard for what counts as “serious.” Therefore, exceptions to the exclusionary rule should be defined more clearly. Only certain types of recordings—such as recordings made by a person who is exempt from liability—should be treated as exceptions. This reduces arbitrary judgments. A public recording made without the other person’s consent can also be treated as an exception. More research is needed to decide what other types of recordings may fit into these exceptions.