Bentley recordings likely not legal in court - WAFF-TV: News, Weather and Sports for Huntsville, AL

Bentley recordings likely not legal in court

Three local attorneys are examining the legality of the alleged recordings of Governor Bentley. (Source: WAFF) Three local attorneys are examining the legality of the alleged recordings of Governor Bentley. (Source: WAFF)

Audio clips of Alabama Governor Robert Bentley are at the center of a scandal involving him and former senior political advisor Rebekah Mason. He's denied having a physical affair with Mason, but the damage is done.

His marriage over, his trust with the people of Alabama is broken and multiple investigations are underway. But the question that some have asked is, are the tapes legal?

Alabama Governor Robert Bentley is now in the midst of a possible impeachment, says he's not stepping down and is taking a PR beating with national networks and shows weighing in. But the recordings, originally posted by, may not have been done above board.

"In Alabama it's illegal to eavesdrop," said Decatur attorney Greg Reeves. "The first thing that went through my mind is the manner of which the recordings were obviously acquired," said Huntsville attorney Matt Wisda.

"You are recording two people's conversation that you're not a party to,” said Huntsville attorney Mark McDaniel.

We had the three North Alabama attorneys research the recording laws and explain to us what is and isn’t legal. All three agree the Bentley recordings are likely not admissible in court and probably illegally made. McDaniel explains why. 

"The law is if you're a party the conversation you can record it. But you cannot bug a phone, you can't listen to two people's conversation that you're not a party to it or have a device that picks that up," said McDaniel.

All three attorneys said this isn't the first time they've come across this issue. Wisda said it happens more than you think, especially in divorce cases.

"You would just not believe the number of people that record. It's probably 60 to 70 percent I'd say of cases where you have people attempting to record or actually recording," said Wisda.  

But Reeves said whoever made the recording isn't likely to face criminal punishment.

"If someone were to take this to a prosecutor and say, 'This is illegal,' presumptively Ms. Bentley broke the law you need to prosecute her,” said Reeves. "Prosecutors have something called prosecutorial discretion which means they don't need to bring every case, every violation of the law. They look at the whole context, they look at what were the circumstances, would justice be served by bringing this?"

So the recordings are probably not admissible in a courtroom as evidence, look to be illegally obtained, and the likelihood of getting sentenced behind bars is slim to none. However, all three men said there's still a lot that you can take away from this scandal and the leaks that are now coming out.

"It's a good teaching lesson that if you're a party to a conversation then you can record that, you can do that. If you're not a party to a conversation you can't bug even your own phone and record a conversation between two people," said McDaniel.

"Certainly, if there is a divorce impending assume anything you write down will be read and anything you say could be recorded and used against you," said Wisda.

"The old saying is all is fair in love and war. Eavesdropping in other people's conversations is not legal," said Reeves.

Eavesdropping is a class A misdemeanor in the state of Alabama and carries a sentence of no more than one year in jail and a fine of no more than $6,000. It's unclear how much, if any of the recordings will be used in the possible impeachment process, but the damage may already be done.

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