Maryland has a Wiretapping and Electronic Surveillance Act, which regulates the interception or recording of wire, oral and electronic communications. Maryland law is even stricter than federal wiretapping statutes, because generally in Maryland both parties to a communication such as a telephone call must consent to the communication being recorded in order to be legal. One exception to this requirement involves the supervision of law enforcement over recording of call, as explored by Maryland’s highest Court in an opinion just filed by the Court of Appeals in a case called David Glenn Seal v. State of Maryland.
The Court’s majority opinion indicates that the victim, beginning from age ten, alleged that he had been sexually abused for several years by his stepfather’s brother. He told no one about this until age 21 when he told his mother and stepfather, then years later told his wife who confronted Mr. Seal who apologized. The victim years later called Seal to ask him why he had abused him, and said Seal again apologized to him. Eventually the victim went to the police, who tried several times along with the victim to reach Seal by phone to record a conversation as a “phone sting.”
After unsuccessful attempts to record such a conversation, the Detective gave recording equipment to the victim and showed him how to use it. The victim took the equipment home to West Virginia, and eventually was successful in recording a phone conversation with Seal in which he made some incriminating statements. A couple of weeks after last talking to the Detective, the victim gave the recordings to the police. At trial, Seal’s attorney was unsuccessful in a Motion to Suppress use of the recorded conversation, and Seal was convicted of child sex abuse and other sex offenses.
The case was accepted for review by the Court of Appeals. It noted that one exception to Maryland’s Wiretap statute was that it is lawful for an investigative or law enforcement officer to record a conversation with only one party’s consent, or for “any person acting at the prior direction and supervisions of an investigative or law enforcement officer to intercept a communication” to provide evidence of certain offenses, including child abuse and sexual offenses with which Seal was charged. The Court reviewed cases around the country as to what constituted police supervision of the recording of a communication. Here, the Court held, there was no supervision of the victim’s recording of the telephone call at all. Therefore, the recording should not have been admitted into evidence, and Seal’s conviction was reversed.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.