MD: Surreptitious recording of def’s statement on cell phone violated state wiretap act

A parent’s surreptitious recording of defendant on cell phone for use to make a sex offense against him was inadmissible under the state wiretap act. Holmes v. State, 2018 Md. App. LEXIS 310 (Apr. 6, 2018).* First paragraph:

In this appeal, we consider whether a parent’s surreptitious use of her cell phone to record a face-to-face conversation with her child may be used as evidence in a criminal trial of a third party. We shall hold that in the circumstances presented here, the recording was prohibited under the Maryland Wiretap Act, Md. Code (2013 Repl. Vol., 2017 Supp.), § 10-401 et seq. of the Courts and Judicial Proceedings Article (“CJP”). Moreover, we conclude that even if we were to recognize a narrow “vicarious consent doctrine” under which a parent may be deemed to have consented to a recording on behalf of his or her child, the recording in this case would not be admissible because appellant failed to establish that it was made in good faith for the benefit of the child.