Preserving Audio Recordings as Digital Evidence

When technology-facilitated gender-based violence (TFGBV) occurs, maintaining a record of events is important for criminal and civil legal matters. You may want to preserve audio evidence as a way to support your case, as an audio recording can illustrate relationship dynamics or domestic violence.

It can also be helpful to document an abusive or harassing voicemail as it will:

• Provide a record of what is happening, which may be helpful if you want to pursue legal actions or in case a video is deleted
• Alert you to any escalation in monitoring and control, which may indicate that the danger is increasing
• Help you and the court see patterns of violence

Harassment, intimidation, and threats can be found in audio recordings that have been taken during a conversation, as well as those sent by a perpetrator. This document provides information on how to preserve audio recordings as evidence in these circumstances.  

You should consider the following when deciding whether this method of evidence preservation is appropriate for you:

• If you plan to rely on audio recordings as evidence in a court proceeding, it is important to check with the Court Registry where your case is being heard, to determine whether the necessary technology to play these recordings will be available. You will either have to request equipment from the court or ask for permission to bring your own devices, such as your phone and Bluetooth speakers, to play the audio recording in court. You will most likely not be allowed to play a recording on your phone in court unless the court approves. You may need to transfer the audio recordings onto a CD or consider other ways of presenting the recording.
• If you plan to use audio evidence in a court proceeding, you will need to authenticate your evidence in court. For more information about digital evidence and authentication, see Authentication of Digital Evidence.  

Before you decide whether to make or preserve audio recordings as evidence of abuse, you need to consider potential risks to your safety. Recording abusive behaviour on the part of the perpetrator could lead to an immediate escalation in violence if the abuser is aware you are recording. If you are saving audio evidence to your smartphone or computer, there may be a risk that the perpetrator is monitoring the activities on your device. This could be happening in several ways. Your smartphone could be monitored if the perpetrator has physical access to your device, such as if you share a home, or if you share your passwords with them. If the perpetrator knows your cloud storage (e.g. iCloud, Google Drive, or Dropbox) ID and password, they will have access to your files, photos, and videos. It is also possible for the perpetrator to be monitoring your smartphone or computer via mobile spyware, such as stalkerware. If the perpetrator is monitoring your device in these ways, recording and saving audio recordings could alert them to the fact you are collecting evidence.     

If you suspect that the perpetrator has access to your devices, accounts, or files, you will need to make a plan for how to avoid detection when collecting evidence. This is both to protect you from additional abuse and to avoid the risk of the perpetrator deleting important evidence. For more information, see Safety Considerations for Preserving Digital Evidence, and consider speaking to an anti-violence organization (See Technology Safety and Victim/Survivor Resources).

Preservation

If you want to preserve a voicemail message or voice note recording, you can do this through the video screen record option on your phone or with an audio recorder app, a USB recorder, or a traditional tape recorder.

If you have an iPhone, the simplest method is the video screen recording option built into iOS that can capture all system sounds being played by the phone. For Android phones, it will depend on what recording app you choose to use and what audio recording capabilities the app has. Alternatively, you can purchase an inexpensive audio recorder with a 3.5 mm microphone jack and connect it to your phone using an adapter. If you play the audio from the speaker on your phone, you can record the audio you want to capture on another device.

Note: If you have a digital answering machine (one that plugs into an electric outlet), unplugging it could erase all your messages. It may be helpful to make an audio recording of the voicemail messages you want to keep on a separate recording device in case the original gets accidentally erased. You will most likely need to transfer the voicemail messages onto a USB, CD, or DVD to present the messages in court.

Transcript

It is recommended that you or someone else make a transcript of the recording. It can be helpful for the court to be able to read what was said in the recording, as it saves time and may be clearer than listening to the audio recording. Additionally, there may be situations where you are not allowed to play a recording in court. In these situations, a transcript of the recording may be allowed as evidence instead. For example, if there is a lot of irrelevant background noise or interruptions in your recording, a judge may prefer the transcript to the audio recording.

If the perpetrator isn’t monitoring your device, and you have Internet access, there are helpful online transcription tools such as www.descript.com or Google Voice Transcription through Google Docs. If you use a secondary transcription service, you will want to double-check all transcriptions to ensure that the transcript is correct by reading it and listening to the audio recording. You can correct any mistakes so the transcript is accurate.

Documentation

You may want to gather the following as documentation of audio recordings:

• Additional information about the call. Some voicemail services will be able to tell you the number of the person who left you a message and the date and time of the voicemail.
• Your phone logs or call history, which you can find on your phone or your phone bill, can match up the message with the phone number, date, and time of the call on your phone logs. Take screenshots of the phone log. You may have to ask your telephone carrier to give you records, which can take time, so plan ahead. If you think you will need these records, contact your telephone carrier immediately to ask that they retain your records.

Preserving and Storing Evidence of Technology-Facilitated Violence: Best Practices and Women’s Shelters Canada’s Sample Technology-Facilitated Violence Log can guide you through what is important to write down and preserve. 

Presenting in Court

To present the voicemail recording in court, you will need the following information:

• The voicemail message in a format that the court can accept as evidence (call the court in advance to ask for guidance and confirm they can accept audio evidence in the format you have).
• How to access equipment needed to play the recording. You may be able to request certain equipment from the court using an Equipment Request Form. However, courts may not always have the equipment you need (e.g. a laptop, speakers). If this is the case, you may have to bring your own equipment.

An audio recording is a recording of a conversation between people. How you record and store an audio recording depends on the device you are using, assuming you are the one who is recording the conversation. If you are not familiar with how to record an audio conversation from your device, you can also do an online search such as: “How to record audio on a [your specific phone or tablet].” Generally, audio recording apps built within the device allow you to record, edit, share, store and delete the recording.

It is important to be aware of the following information before recording a conversation:

• Section 184 of the Criminal Code states that recording private conversations is legal, as long as the person recording is one of the people involved in the conversation. For example, if you are speaking on the phone with an abusive partner, it is legal for you to secretly record this conversation. This is called “one-party consent.” It is not legal to record conversations that you are not involved in (i.e. eavesdropping). For example, you cannot secretly record a conversation between an abusive partner and one of their friends, and you cannot ask a friend to record a call between you and an abusive partner.
  
• Although it is legal to record a conversation you are involved in, a court may not accept one-party audio recordings as evidence. In some situations, trying to use a one-party consent recording in court may result in the judge having an unfavourable impression of you. You would need to explain to the court the circumstances of why you felt it was necessary to record the conversation without telling the other person you were recording. One explanation to provide the court is that it was necessary to document the ongoing abuse, harassment, and intimidation that you and your children experienced regularly, and it was not safe to tell the perpetrator you were recording the conversation. In family law matters, one-party consent recordings can erode the trust between family members, particularly between parents and children and youth. It can be difficult for children to be in the middle of a disagreement between adults and if you are recording a child, you should not try to encourage them to say negative things about the opposing party. Additionally, when you are recording a conversation, make sure that you are not purposely trying to make the opposing party look bad for the sake of the recording. These actions could undermine your credibility in court.
  
• Depending on your device and settings, all audio recordings may be saved and available on every device that is signed into your cloud storage account. This could mean that the perpetrator has access to your audio recordings (e.g. if you share devices or the perpetrator knows your cloud ID and password).
  
• Do not edit the audio recording in any way. Courts prefer to hear the recording in its entirety and may doubt the accuracy of the recording if it has been edited.
• Be prepared to establish the circumstances in which the recording was made, and that its integrity has not been compromised (i.e. it has not been edited). In this regard, it is important to preserve the metadata of the electronic file by keeping a copy of the original recording. The metadata show when the original recording was made.
• It is best to transfer the audio file as few times as possible to minimize questions about the authenticity of your recording. Keep a record of the number of times and the ways you transferred the recording from one device to another.
• Document the time and date of the recording and who can be heard on the recording. Women’s Shelters Canada’s Sample Technology-Facilitated Violence Log can guide you through what is important to write down.

Identifying the Other Party

You might have to prove the identity of the person being recorded. Sometimes an individual may deny that they are the individual on the recorded audio. If you record a conversation between you and another individual, you can testify to their identity. If the recording is a voicemail from someone you know well, you can testify that you recognize the individual’s familiar voice and style of speech. If it is a phone call or voicemail, you may have evidence that the perpetrator’s phone number is associated with the evidence. Additionally, if the individual reveals personal information about themselves during the recording, it can be used to prove their identity.

Safeguarding Audio Evidence

Keep any saved audio recordings you plan to rely on as evidence in a safe place. Remember to back up a copy of the file on a secondary device or storage space. File storage options will depend on your circumstances. For more information, see Preserving and Storing Evidence of TFGBV: Best Practices and Safety Considerations for Preserving Digital Evidence.

Technology-Facilitated Gender-Based Violence (TFGBV) is part of a continuum of violence that can be both online and in-person. If you or someone you know is experiencing TFGBV, you are not alone. You can use sheltersafe.ca to find a shelter/transition house near you or call/text the Kids Help Phone to discuss options and create a safety plan. You don’t need to stay in a shelter to access free, confidential services and support.

We gratefully acknowledge Moira Aikenhead for providing expertise to update this toolkit.

Adapted with permission from BCSTH’s Technology Safety project, based on their resource How to Preserve an Audio Recording as Evidence. Adapted for Canada with permission from NNEDV’s Safety Net project, based on their resource Legal Systems Toolkit.