That’s a great question, and one of the many complicated issues that can arise in Wisconsin in family law cases.
To start, if he was a party to the communication, it may be permitted but only if “authorized”. If not, it is a felony unless he was acting “under the color of the law” (typically only if a police officer, or through police instruction).
If he was a party to the communication, it would initially seem under 968.28 to 968.34(c) of the Wisconsin Statutes, that such a private recording by a party to the communication is lawful. But, it being lawful is not the same thing as it being admissible. Under State v. Duchow, No. 2005AP2175-CR (Wis. App. 4/3/2007) (Wis. App., 2007), it must also be authorized by the court, and – if so – may only be used while giving testimony under oath. To receive such authorization, one must make an application for electronic surveilance to the circuit court, per Section 968.29(2). And, the Arnold Court found that to properly object, “to properly enforce the § 968.29 limitations… a writ of prohibition against admission of the intercepted conversations was required. Id., 51 Wis. 2d at 444.”
So, the answer is, in short, (a) it is clearly illegal and even felonious if he was not a party to the conversation or acting under the color or the law; (b) if he was a party to the communication, he must receive authorization to be able to admit the recording AND – if he receives such authorization – he only is allowed to admit such evidence while testifying under oath.
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