In the current age of technology, we have GPS, voice recorders, and now, a new app, entitled “mCouple” which is an application that can be installed on a partner, spouse, or child’s phones. The app allows you to monitor the phone calls, texts, emails, Facebook activity, and any source of data on the phone for which the app is installed. On Android phones, there is a “free” version and a paid version. On the iPhone, only the free version can be downloaded. It allows a party to record the phone calls on the other’s phone, read their text messages, Facebook posts, track the phone, and in essence obtain any and all detail from the other’s phone. As a private citizen, the question becomes in the divorce context, is this permissible? And the answer, just as with anything in the legal context, is potentially, but there are extremely large risks and potentially criminal ramifications which far outweigh any potential benefit of the application.
The app’s purpose is to be a mutual disclosure application. It allows if set up correctly, each party to see the other’s phone, which also requires both parties to consent to the application, by clicking on the accept tab from their individual phone. The application indicates that it requires the consent of the other party. If used by agreement, excluding potential evidentiary issues, most of the information obtained should be admissible. Any statements, texts, or posts by the other party should be able to be used, in most cases, in court. The real issue then lies, if you do have the application, and if you somehow manage to covertly download it on another individuals’ phone and manage to have it operate in the background where the other does not know: Is the information still admissible? The answer to that question is much vaguer and frankly much less advisable because of the potential costs.
There is an issue with using the application without the other’s direct knowledge and consent and most attorneys are likely to advise against it. Ethically, an attorney is prevented from advising, encouraging, or instructing another individual (including a client) from surreptitiously recording any phone calls. Certainly, an attorney is likely to discourage or at least not advise the usage of this particular application, absent the express consent of the other party.
Even if an attorney were not to specifically advise against the usage of an application, or if an individual does not seek or consult an attorney prior to using such an application, the application itself in the state of Colorado is likely to not be of much benefit in the divorce context. First off, Colorado is a no-fault state. By statute, the court cannot and will not consider marital misconduct in awarding any support or dividing the marital estate. Thus, the court will not consider if one spouse has an affair, is currently seeing someone else, or consider which party filed for divorce. Thus, in most situations, proof of cheating or an affair is going to be inadmissible, as it is likely irrelevant.
As it pertains to admissibility, so long as the piece of evidence is not otherwise excludable based upon evidentiary grounds, such as that the information obtained is irrelevant or if it is hearsay, the potentially “illegality,” of the way that it was obtained, may not in and of itself exclude otherwise admissible evidence. Generally, if a piece of evidence was seized illegally, so without a party’s consent or without a warrant, the item can be excluded. This, of course, does not pertain to an individual’s conduct, who seizes or takes a piece of evidence (such as a phone conversation or a text message) without another’s consent as a private citizen is not subject to the constraints of the 4th Amendment. The exclusionary rule, which would allow a court to strike a piece of evidence wrongfully obtained, is not a personal right but is a judicially created remedy to deter police misconduct. Notwithstanding the potential admissibility, the use of such evidence or the attempts at obtaining this evidence may indeed subject a party to criminal charges, which is likely to outweigh any benefit gleaned.
The other issues that arise are criminal in nature and thus are likely to dwarf any potential benefit that may be seen from the usage of the application. First off, Colorado is a one-party state, which means phone calls can be recorded so long as one party to the conversation knows that they are being recorded and while an attorney cannot and will not direct an individual to record a conversation they are ethically authorized to advise as to the status of the law. However, the issue then becomes that likely many of the conversations and recordings are not going to be of the couple, but indeed communications with another individual, from which the recorder or the spouse that wants to use the information is not a party. This situation has a criminal connotation–you can be charged criminally with wiretapping. Further, a person can be found guilty of eavesdropping is they are not visibly present during the conversation and knowingly overhears or records a conversation. Under both of these provisions, a party can be found guilty of a felony.
The possible criminal ramifications do not stop there either. With the application’s tracking capabilities, while you can see where the other person is, there is the potential that this feature that the application provides to can lead to additional criminal charges. In Colorado, case law has extended the definition of stalking, to include observation or even acquiring information of another’s location. Stalking does not require physical presence, which means that recording someone’s location, and then being able to ascertain that location and track it even at a later time, can meet the element of placing a person under surveillance as defined in the criminal code.
If you do believe that there may be something that is being hidden by your significant other, that you believe may lead to evidence that can be used in a dissolution proceeding, there are several options that are far less risky and far more desirable than the application described above- if your spouse or significant other is unwilling to agree to each using and downloading the application. A private investigator may be a more desirable option. First off, they are now ordered to be licensed. Effective June 1, 2015, SB 14-133 requires that all private investigators be licensed with DORA. They also are bonded, which can help reduce any liability that you may be subjected to by simply allowing them to do their job. If there are additional concerns regarding financial information, subpoenas can be issued to financial institutions to attempt to uncover accounts, thus there is little need for moving forward with this application, unless the parties explicitly agree. The benefit certainly does not outweigh the possible ramifications of any attempt to covertly use the application.
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