The Unconstitutionality of Illinois Eavesdropping Statute and its Impact on Family Law

Editor’s Note:  In December, 2014, Illinois Governor Quinn signed into law a revised version of the Illinois Eavesdropping Statute.  The constitutionality of the new law has not yet been challenged.


On March 20, 2014, the Illinois Supreme Court struck down the Illinois Eavesdropping Statute, 720 ILCS 5/14-1, et seq. , as unconstitutional. See People v. Clark, 2014 IL 115776; People v. Melongo, 2014 IL 114852. Generally speaking, that law made it a crime to make an audio recording of another person without their consent, subject to certain exceptions. Worse, the statute rendered any evidence obtained in violation of its provisions inadmissible in any civil or criminal trial. 720 ILCS 5/14-5.

From an evidentiary perspective, the probative value of an audio recording of a person’s own words, spoken aloud in his or her own voice, cannot be underestimated. As such, in the context of family, the old Eavesdropping statute deprived litigants and their divorce attorneys of potentially valuable evidence. Thus, the Illinois Supreme Court’s decision is a decidedly positive development in the law.

To illustrate, suppose that George and Mary are about to file for divorce. They are home on an otherwise quiet evening. George is sitting on the couch, watching TV. Mary is getting ready for bed. Earlier in the day, however, they had argued extensively. George accused Mary’s family of unnecessarily meddling in their household affairs. Mary blamed George. She felt that if George would simply act more responsibly, her family wouldn’t have to get involved. Though they had stopped arguing hours ago, they were at an uneasy state of peace.

A few minutes later, Mary asks George if he was going to take their daughter to driver’s education the next day. Knowing just the right buttons to push, George replies by telling her that he’s too irresponsible to do it. He suggests that perhaps Mary should ask her super-reliable father instead.

Just as George had expected, Mary becomes irate. She spends the next hour screaming at George, telling him that he’s the world’s biggest loser, and that she doesn’t know why she ever married him in the first place. George tells her to be quiet, because he is trying to watch TV. He turns up the volume on the remote control. His response only fuels her anger. She stands over him and begins recounting the litany of ways in which he has disappointed her during their marriage. Unbeknownst to Mary, George reaches into his pocket and begins recording her with his smart phone.

George asks Mary to please leave him alone. Mary begins yelling at a higher volume. George gets up and tells her he just wants to go to sleep. Mary follows him into the bedroom, stands over him, and continues berating him as he holds his pillow over his ears. After 30 minutes of Mary’s maniacal screaming, all of which is recorded, George gets up, gets dressed, grabs a bottle of water, and tells Mary he is leaving. Mary follows George to the garage and tells him he will never see his kids again. At his wit’s end, George throws his bottle of water against the wall, tells Mary to leave him alone, and drives away.

The next morning, Mary goes to court and obtains an emergency order of protection against George. She alleges that George has a violent temper, and that he threw a water bottle at her. She alleges that she is scared and needs an order keeping George out of the house and away from their children. Since the petition was brought without any notice to George, he is not present in court. The court grants Mary’s petition, and continues the matter for hearing in two weeks. In the meantime, George has no place to live and cannot speak with his children.

George hires a lawyer and tells him his version of events. He excitedly explains that he can prove Mary is a liar, because he recorded the entire incident. Smiling from ear to ear, he pulls his phone from his pocket, and plays the recording for his lawyer to hear.

George’s smile quickly fades when his attorney explains that the recording cannot be used in court, as it was made in violation of the Illinois Eavesdropping Statute. Worse, his lawyer tells George that he committed a Class 4 felony by recording Mary without her consent, subject to a maximum of 3 years in prison.

His lawyer further explains that, without the recording, the case is a classic he said / she said. The outcome will depend on whom the judge deems more credible based upon their testimony presented at the upcoming court date. In his professional opinion, the order of protection case was a “toss up,” which could go either way.

If the above hypothetical case were to arise now, after the Supreme Court’s decisions in the Clark and Melongo cases, Mary would have a serious credibility problem in the eyes of the court.


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