Molestation Conviction Reversed Due to Admission of Unlawful Recording

The defendant was convicted of child molestation and aggravated child molestation following allegations made by his 15 year-old stepdaughter. During the trial, a recorded conversation between the defendant and the child was admitted despite objections that the recording had been obtained illegally. The phone call took place in the police department at the behest of the detective investigating the case.

O.C.G.A. § 16-11-66 provides that a phone call may be recorded as long as one of the parties to the communication has consented to the recording. However, consent for the recording of the conversations of a child under the age of 18 years “shall be given only by order of a judge of a superior court upon written application.” The judge would be authorized to issue such an order only upon finding probable cause that a crime had been committed, and determining that the child’s participation in the recording would not be harmful to the child, that the child understood that the conversation was to be recorded and that the child agreed to participate.

This would apply to any situation where a third party (i.e., the police) wishes to record a phone conversation involving a child. The statute does not apply if there is no third party involved and the child makes the recording herself. The statute also allows for parents to record conversations involving their own children if it is being done for “the purpose of ensuring the welfare” of the child.

Thus, the Court held that it was error to admit this evidence since there was no question that the detective failed to obtain a court order pursuant to the statute. The State argued that even if the recording was not admissible, its admission into evidence was harmless error. The Court rejected this argument and held that the evidence in the case was not overwhelming, and the jury’s request during deliberations to re-listen to this recording confirmed the importance of this evidence to their ultimate verdict.

As a result, the Court reversed the defendant’s child molestation convictions and remanded the case for a new trial.