Since technology facilitated the recording of conversations, and Justice began to accept it more frequently in legal proceedings, many people became interested in the subject.
Knowing this, we went after someone who understood the subject and interviewed Dr. Josimar Lira, who kindly offered to give us the answers to the most common questions about this type of evidence production.
Dr. Josimar de Assis Lira has been a lawyer for 14 years. He acts in advisory and strategic litigation in the business, civil and labor areas. Has experience in contract management and negotiation (B2B); support in corporate operations (Due diligence in M & A); implementation of Compliance; and negotiation of labor conflicts with Trade Unions (ACT, strike, lay-off, mass dismissal). He is a specialist in Business Law from PUC / SP and a post-graduate degree in Tax Law from the same institution. In teaching, he teaches lectures and is a guest lecturer in postgraduate and MBA courses. Find out more about Dr. Josimar by visiting his website.
Our first question was: on a recording, what is it essential for it to serve as legal evidence? He told us that we can do environmental recordings and even from our landline.
However, he warned us that it is necessary to clarify the difference between the two types of recording: 1) recording third-party conversation and 2) recording the conversation itself with third parties. Let us know these differences?
Third-party chat recording
To record the conversation of third parties – with or without consent – without the participation of the one who is recording, is absolutely prohibited by law, configuring unlawful and invasion of privacy.
Dr. Josimar warns that it can still be the cause of compensation if there is an undue sharing of this recording. Thus, the recording does not serve as judicial proof of the principle of “poisoned tree fruit”, that is, if the evidence was illegally obtained, it tends to nullify certain procedural acts.
Recording your own conversation with third parties
Record your conversation with third parties is absolutely legal conduct; that is, you are participating in the conversation. The record of such recording may be used as evidence and ordinary justice, in criminal and civil courts, as well as Labor Justice, quietly admit the use of such evidence.
Dr. Josimar again advises that due care must be taken to prevent improper sharing of this evidence, since it is very common to find recordings of crime videos, abuse of authority and other criminal acts on platforms such as Youtube or Facebook. “Such conduct is reprehensible, it can generate damages for moral damages and, even, prejudice the assessment of the evidence by the judge, at the time of the trial,” he warns.
So, we already know that it is lawful to record our environmental conversations with the smartphone recorder, as well as the connections made and received by him; and we can also “staple” the phone itself – even without the need to inform our interlocutor that the conversation is being recorded.
Is the recording of the hearings lawful?
In one of his lectures, Dr. Josimar says that he usually records the hearings in which he is present as a lawyer. We ask if a defendant or witness can also do this without restrictions. In reply, he mentioned article 367 of the NCPC, in paragraphs 5 and 6:
“Art. 367. The servant shall draw up, under the judge’s dictation, a term that shall contain, in summary, what happened at the hearing, and, at the same time, the decisions, the decision and the sentence, if pronounced in the act.
“Paragraph 5. The audience may be fully recorded in image and audio, in digital or analog media, as long as it assures the quick access of the parties and the judging bodies, observing the specific legislation.
“Paragraph 6 The recording referred to in paragraph 5 may also be performed directly by any of the parties, regardless of judicial authorization.”
Therefore, there is no doubt that the part itself can perform the recording. “By analogy,” argues Dr. Josimar, “we understand that the lawyer can also record, since he is representing the party. The witness, since he is not a party to the proceedings, has no such faculty. “
Conversations via WhatsApp, Skype and Facebook serve as evidence?
We also want to know if the written or audio conversations made from applications such as WhatsApp, Skype, Facebook and other platforms and communication networks, including the less popular ones, have the same legal value. Dr. Josimar replied that yes, since such digital tools leave traces, such as a print on the screen, files, logs of the conversations and the audios themselves sent by the interlocutor.
But he left a caveat about the prints of the talks, as images can be manipulated digitally. In his words, “often the job to companies holding the applications is useless to see if the message is true or not.”
Therefore, conversation prints have a relative value of proof. But, according to Dr. Josimar, since such applications have end-to-end encryption, the counter-test can be done by presenting one of the cellular devices involved in the conversation, which can even be tested.
An important note
In judicial proceedings, in most cases, the judge does not listen to the recordings. For this reason, the file is usually transcribed into text (deprecated). In this way, the most important part (s) of the conversation can be more easily located and only when there is a need for a finding, the judge can request the listening of the audio.
Therefore, if you have an important recording to use as evidence, ideally you should already request the tape-writing service. If need be, we have an excellent team of engravers who performs this service daily and can deliver the file properly degravado, ready to be used judicially.
We hope you enjoyed these conversation recording tips for court evidence. If you wish to be notified whenever we post a new article, feel free to register your email in the form below. Until the next post!