Recorded "Pretext" Calls and Conversations in Michigan Sex-Crime Cases

A recorded conversation between the complainant and the accused can become evidence in a Michigan sex-crime case because of two bodies of law: the eavesdropping statute, which decides whether making the recording was lawful, and the rules of evidence, which treat a party's own statement, offered against that party, as not hearsay.^[1][7] A call made at the direction of police is often called a "pretext call" or "one-party consent call," though neither term appears in the statute.

This page explains what the statute says, what courts have and have not decided, and how a recording is handled in court. It describes the law and does not suggest how anyone should conduct or respond to a conversation.

What Michigan's eavesdropping statute prohibits

The prohibition is in MCL 750.539c. Any person, present or not present during a private conversation, who willfully uses any device to eavesdrop on the conversation "without the consent of all parties thereto" commits a felony.^[1] The same is true of a person who knowingly aids, employs or procures another person to do so.^[1] The maximum penalty is imprisonment for not more than 2 years, a fine of not more than $2,000, or both.^[1]

The definition section supplies the key phrase. "Eavesdrop" means "to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse."^[2]

Can one person in a conversation record it?

The words "of others" are why Michigan does not fit neatly into the usual "one-party" and "all-party" categories.

In Sullivan v Gray (1982), the Michigan Court of Appeals concluded that the statutory language "unambiguously excludes participant recording from the definition of eavesdropping by limiting the subject conversation to 'the private discourse of others.'"^[3] In Fisher v Perron (2022), the federal Sixth Circuit agreed that, under the current law in Michigan, a participant does not violate the eavesdropping statute by recording a conversation without the consent of the other participants.^[3]

The same Sixth Circuit opinion records the limit of that conclusion: the Michigan Supreme Court "has yet to determine whether this statutory language allows for secret participant recordings or requires the consent of all parties to record a call."^[3] Whether any Michigan appellate court has revisited the question since that 2022 opinion was not checked for this guide.

Statement often heard	What the sources say
"Michigan is a two-party consent state."	The statute does say "consent of all parties," but its definition of eavesdropping covers the private discourse "of others."[1][2]
"Michigan is a one-party consent state."	That is the Court of Appeals' reading of the statute, not the statute's own words, and the Michigan Supreme Court has not ruled.[3]
"A third person can record a call if one side agrees."	The Court of Appeals' reasoning concerns recording by a participant; the statute's felony reaches a person "who is not present" and one who procures another to eavesdrop.[3][1]

Calls recorded at the direction of police

The eavesdropping sections carry their own exemption for law enforcement. They do not prohibit "eavesdropping or surveillance not otherwise prohibited by law by a peace officer of this state or of the federal government, or the officer's agent, while in the performance of the officer's duties."^[4]

Two parts of that sentence deserve attention.

• "Or the officer's agent." The exemption is not limited to the officer personally.^[4]
• "Not otherwise prohibited by law." The exemption removes the eavesdropping statute as an obstacle. By its own terms it does not answer whether some other law prohibits a given recording.^[4]

On the Michigan Constitution there is a Michigan Supreme Court decision. In People v Collins (1991), police monitored and recorded conversations between the defendant and an informant with the informant's consent but without a valid search warrant; the first was a telephone call the informant placed from a state police office.^[5] The Court concluded that "the warrantless participant monitoring in this case violated no reasonable expectation of privacy on the part of defendant," found no compelling reason to interpret article 1, section 11 of the Michigan Constitution as affording greater protection than the Fourth Amendment, and overruled People v Beavers (1975), which had required a warrant.^[5] The decision was not unanimous; there was a dissent.^[5]

In the same opinion the Court observed that the eavesdropping statute "clearly applies to private citizens" but does not prohibit eavesdropping or surveillance "not otherwise prohibited by law" by a peace officer or the officer's agent.^[8]

Three limits apply to what Collins tells a reader. It was an obstruction-of-justice prosecution, not a sex-crime case.^[5] It was decided in 1991, and article 1, section 11 was amended effective December 19, 2020; the section now protects a person's "electronic data" and "electronic communications" from unreasonable searches and seizures.^[6] Whether any later decision has revisited Collins, and whether the 2020 amendment changes the analysis for a recorded call, were not researched for this guide and are questions for a court.

Is a recorded statement admissible?

Making a recording lawfully and using it in court are separate questions. On the second, three rules come up first.

Hearsay

A statement is not hearsay when it is offered against an opposing party and was made by that party in an individual capacity.^[7] In a criminal trial that covers the defendant's own words. The rule says such a statement is not hearsay; it does not say the statement must be admitted, and other objections remain available.

The complainant's side of a recorded conversation is a different matter, because the complainant is a witness, not a party. How a witness's out-of-court statements are handled is covered in What happens at a CSC trial and, for children, in the tender-years rule.

Authentication

To authenticate an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.^[9] For a recording or a message thread, that is a showing about who is speaking or writing and that the item is what it is said to be. See Texts, apps and digital evidence.

Miranda

Miranda bars the prosecution from using statements stemming from custodial interrogation unless procedural safeguards were used, and it defines custodial interrogation as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom of action in any significant way.^[10] The opinion states that volunteered statements of any kind are not barred by the Fifth Amendment.^[11] Those rules are explained in When a detective calls.

Texts, direct messages and social media

The eavesdropping definition is written in terms of overhearing, recording, amplifying or transmitting "private discourse."^[2] A message that a person typed and sent to another person raises the evidence questions above more than the eavesdropping question: whether the message is that person's own statement, and whether it can be authenticated.^[7][9]

How police obtain messages from a phone or a provider is a search question. A warrant issues on a sworn affidavit when a judge or magistrate is satisfied there is probable cause, and the Michigan Supreme Court has held that a warrant to search phone data for evidence of one crime does not allow a search of the same data for evidence of another crime without a second warrant.^[12][13] See Phone and computer searches.

What a recording does and does not prove

A recording is one item of evidence, weighed with the rest. Witness credibility is a question for the fact-finder.^[14] Neither side needs a recording as a matter of law: the testimony of a victim need not be corroborated in a criminal sexual conduct prosecution, and the model instruction conditions that on the testimony proving guilt beyond a reasonable doubt.^[15][16] For how such cases are tried, see cases without other witnesses.

What the sources reviewed do not settle

• Whether the Michigan Supreme Court will adopt or reject the Court of Appeals' reading that a participant may record. As of the Sixth Circuit's 2022 opinion it had not decided.^[3]
• How People v Collins applies to a call a complainant places at police direction in a sex-crime investigation, whether any later decision has revisited it, and whether the 2020 amendment to the Michigan Constitution changes the analysis. The statutory exemption applies only to surveillance "not otherwise prohibited by law."^[4][5]
• What federal law provides. The eavesdropping definition says the act does not modify or affect any law or regulation concerning interception, divulgence or recording of messages transmitted by communications common carriers, and no federal statute was reviewed for this guide.^[2]
• How the rules differ when one participant is in another state. No source on interstate calls was reviewed.

Because these points are open, anyone whose case turns on a recording, whether as the person recorded or the person who recorded, is dealing with a question that turns on the specific facts. Related orientation is in How a sex-crime investigation works and Accused of a sex offense: first steps.