The Use of Audio and Video Recordings in Judicial Proceedings (Family Law)

It is well known that many of the facts discussed in judicial proceedings within the jurisdiction of family and juvenile courts occur behind closed doors and are witnessed only by the parties involved. For this reason, it is common for parties to seek to record telephone or in-person conversations as a way to produce evidence in court. Indeed, it is not uncommon for parties to attempt to use videos recorded on their mobile phones or conversations they have recorded and whose content they believe is relevant in court. Problems arise when the recordings submitted in court are obtained without the consent or even the knowledge of the individuals involved, something that has been occurring with particular frequency in family law due to the special conflict and evidentiary difficulties typically associated with marital issues and matters concerning children and young people.

This growing trend of resorting to unauthorized audio and video recordings in family law proceedings raises particular questions as to whether such evidence is unlawful and inadmissible in civil proceedings, as it may violate the constitutionally protected rights of the opposing party, or whether, on the contrary, it may in certain cases be considered by the court in deciding the merits of the case.

On the Illegality of Evidence from Unauthorized Recordings

As a prelude to the subsequent discussion of this topic, it is important to clearly distinguish between some terms and concepts that are similar but not to be confused with one another.

Not all forms of evidence, even if materially capable of influencing the decision-maker’s conviction regarding the occurrence of relevant facts, can be considered by the judge in determining the facts deemed proven for the purposes of procedural truth. There are numerous cases where the evaluation of evidence is prohibited; that is, cases where the decision-maker cannot take certain evidence into account when forming their conviction about the material truth relevant to the jurisdiction.

The prohibition of evaluating certain evidence generally stems from the inadmissibility or illegality of the evidence. The inadmissibility of evidence arises from a procedural flaw in the evidence, where the evidence itself is not illegal, but procedural law does not allow it to be submitted to the judge. On the other hand, prohibited or illegal evidence is that which is inherently illegal because it pertains to forbidden topics or because its acquisition or production in court involves an act that is materially illegal. Although the prohibition of evidence generally results from the inadmissibility or illegality of the evidence, the illegality of the evidence does not necessarily lead to its prohibition from being produced or evaluated, as we will subsequently elaborate.

Now, the evidence in the form of a recording of a private conversation without the consent of one of the parties involved necessarily constitutes illegal evidence, as its acquisition results from the violation of various constitutionally protected fundamental rights of the non-consenting participant, including the right to freedom of expression and the right to privacy in private or family life, as well as the inviolability of correspondence and other forms of private communication. Additionally, recording or using recordings of words spoken by others and not intended for the public may constitute a crime. However, the illegality of this type of evidence does not necessarily imply the prohibition of its evaluation.

The Consequence of Illegal Evidence in Family Proceedings

In criminal proceedings, the Portuguese Constitution mandates the nullity of all evidence obtained through abusive intrusion into private life, the home, correspondence, or telecommunications. However, there is no reference, in the Constitution or in sub-constitutional legislation, to the consequences of illegally obtained evidence in civil proceedings, leading to doubts about the admissibility of such evidence in family and child proceedings.

This paradigm has led to significant divergence in national doctrine and jurisprudence. Some national jurisprudence holds that illegal recordings cannot be admitted as evidence under any circumstances, supporting an analogous application of the constitutional rule to civil proceedings based on the need to discourage illegal behavior, the judge’s duty to report crimes committed during hearings, and the constitutional prohibition on evaluating illegal evidence in criminal proceedings

Conversely, another sector of jurisprudence, following the majority doctrine, has come to consider that the illegality in obtaining certain evidence does not necessarily lead to its prohibition from being evaluated, but also does not guarantee its use. Therefore, unauthorized recordings as evidence are not necessarily inadmissible in civil proceedings but may only be evaluated in specific and exceptional situations, a view which, in our opinion, best reconciles with the relative nature of constitutionally protected fundamental rights.

While the right of access to courts and the production of evidence in civil proceedings involves limitations, which do not imply the admissibility of any and all evidence, fundamental rights are not absolute or unlimited. The Constitution itself allows their restriction as long as such restrictions aim to safeguard other constitutionally protected rights or interests, do not diminish the extent and scope of the essential content of constitutional provisions, and respect the principle of proportionality in its various aspects.

Let us then examine under what terms unauthorized recordings may be evaluated by our courts.

On Unauthorized Recordings in Family Law Proceedings

For unauthorized audio and video recordings to be considered admissible as evidence in family law proceedings, they must constitute the only possible and reasonable means of protecting other values that, in the specific case, should be considered paramount (doctrinal source: José Abrantes, *Prova Ilícita*), which implies that the evidence in question must meet certain cumulative requirements for its evaluation to be legally admissible.

First, the recordings in question must be suitable and adequate to demonstrate specific facts, which must, in turn, be relevant for the fair resolution of the dispute. If the recordings do not prove the facts sought to be demonstrated, or if such facts, even if proven, are irrelevant to the decision on the merits of the case, they should be summarily rejected.

However, it is not enough that the unauthorized recording is capable of demonstrating certain facts; there must also be a necessity to resort to this form of evidence, effectively creating a state of evidentiary necessity. In other words, resorting to illegal evidence must be the only possible or reasonable way to prove the facts. If other means of evidence are available to prove the facts in question, such as witness testimony or hearing from children, there will be no absolute need to resort to illegal evidence, and therefore, it should not be evaluated by the court.

Finally, there must be a proportional relationship between the means, the sacrifice of fundamental rights imposed by the use of unauthorized recordings, and the objective sought through the use of such evidence. Thus, for the use of unauthorized recordings to be admissible, it must safeguard constitutionally protected fundamental rights and values which, due to their relevance and intensity, should in the specific case prevail over the fundamental rights associated with the illegality of the evidence, thereby legitimizing the compression of the latter.

There is, however, no rigid hierarchy of interests and values that determines the a priori prevalence of one interest over another; it is necessary to weigh the interests at stake on a case-by-case basis. Unauthorized recordings can only be evaluated when they serve to protect interests that, in the specific case, prevail over the fundamental rights violated by the illegally obtained evidence. The discovery of material truth per se is not sufficient to justify the commission of crimes or the violation of individual fundamental rights. However, it may happen that, in a specific case, other involved interests, after the appropriate balancing of values, justify the use of illegally obtained evidence.

From the above, it can be concluded that unauthorized recordings are not necessarily admissible in family law proceedings, even when children are involved and even if they are the only way to demonstrate certain facts. It is necessary that the specific interest being safeguarded is of such intensity that it justifies the means used to substantiate it.

Consider, for example, situations of child abuse where the unauthorized recording is the only viable way to prove the physical or psychological violence suffered by the child. In such a case, it may be justified to override the fundamental rights of the non-consenting participant by admitting the evaluation of recordings of their private conversations to safeguard the best interests of the victimized child.

In sum, unauthorized recordings constitute illegal evidence, as their acquisition involves an illegal act that compromises the fundamental rights of the non-consenting participant. However, while the right to evidence and the pursuit of material truth are not absolute, in civil proceedings, unlike in criminal law, the consequence of the illegality of the evidence is not clearly defined, which has led to divergent jurisprudence from our courts.

Although a sector of our jurisprudence still summarily rejects the evaluation of illegal evidence in civil proceedings, part of the doctrine and jurisprudence correctly admits the exceptional evaluation of illegally obtained evidence when the use of such evidence is the only possible and reasonable way to protect other values that, in the specific case, should be considered paramount, a more flexible understanding that better reconciles with the relative nature of fundamental rights and allows for the safeguarding of other interests and fundamental rights that are considered paramount.

Ivo Morgado

Nuno Cardoso Ribeiro