Washington’s Privacy Act does not apply to Defendant’s inadvertant recording

In the recent Washington Supreme Court decision, State v. John Garrett Smith, the defendant was convicted of seriously injuring his wife. During the assault, the Defendant used the home’s land line phone to call his cell phone in an attempt to locate the cell phone (which the defendant had misplaced). Unbeknownst the defendant, when he called his cell phone and did not answer the cell phone went to his voice mail and started recording a message (because the land line phone was still on). The voice mail message recorded his wife screaming and also contained other key pieces of evidence. Eventually, the prosecutor obtained this voice message and used it against the defendant at trial.

The defendant was convicted at trial but appealed, arguing, among other things, that the prosecutor’s use of the voice mail message violated Washington’s privacy act, which is found in RCW 9.73.030. In a nutshell, that statute requires a person’s consent to record a private conversation.

The court held that this voice message did not contain a “conversation” within the meaning of the privacy act. Since the privacy act did not apply, no consent was needed. Furthermore, the court added that even if the voice message was a “conversation” under the privacy act, the defendant implicitly consented to the recording since he was the one who initiated it (and despite the fact the defendant did not intentionally record the conversation or was even aware of the recording). And while he did not obtain his wife’s consent prior to making the recording, there is an exception to the consent rule in the privacy act for conversations that contain threats or are an emergency in nature. Accordingly, the court allowed the use of the voice message at trial and upheld the conviction.