Criminal Justice

recording

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A divided Pennsylvania Supreme Court ruled Thursday that secretly recorded audio can be used against a nanny accused of assaulting three young children.

Justice Max Baer wrote in the majority opinion that the evidence was admissible in court because Beth Ann Mason did not possess a “justifiable expectation that her oral communications would not be subject to interception by a recording device located in the children’s bedrooms.”

“Notably, the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as ‘nanny cams,’” Baer wrote. “That is to say that the expectation that a child care worker is going to be recorded in their employer’s home is so ubiquitous in our society that we have a name for it.”

PennLive.com has coverage of the decision. Hat tip to How Appealing, which also linked to a concurring opinion and two dissenting opinions here and here.

When Eric Valle hired Mason as a nanny in April 2017, he asked her not to use corporal punishment on his children, the opinion says. One month later, his 3-year-old son told him Mason was “thumbing” him in the face and hitting his twin 2-year-old sisters. He also noticed that all three children occasionally had injuries or marks on their faces.

Valle confronted Mason, but she denied hurting the children, the opinion says. He installed a camera that captured sound and video and later recorded Mason “yelling at one child before forcefully placing her into a crib.” The recording’s audio portions indicated that she may have also hit the child.

Mason was charged with aggravated assault, simple assault and endangering the welfare of children after Valle gave the recording to police. At trial, according to the opinion, she filed a motion to suppress the audio and video recordings, arguing that they violated the state’s Wiretapping and Electronic Surveillance Act.

The district court agreed, holding that they were illegally intercepted oral communications that did not fall under any exceptions to the law. It reasoned that Valle could only use the recordings if he suspected that Mason “was committing, about to commit or had committed a ‘crime of violence,’ as that term is defined in the Wiretap Act,” the opinion says.

The Pennsylvania Supreme Court heard the case after a split superior court panel ruled in 2019 that prosecutors could only use the video portion of the recording. In its opinion, Baer wrote that if a criminal defendant thinks evidence in the form of an “oral communication” was intercepted in violation of the Wiretap Act, they can make a motion to exclude that evidence.

“Thus, for appellee’s motion to exclude to succeed, she carried the burden of presenting evidence to establish that, under the circumstances of this case, she possessed a justifiable expectation that the oral communications, which were captured by the nanny cam in the Valle children’s bedroom, would not be intercepted,” he wrote. “Appellee failed to meet this burden.”

In dissenting opinions, Justices Christine Donohue and David Wecht wrote that Mason did have a justifiable expectation that she would not be recorded.

“I strongly disagree that, as a matter of law, anyone accepting employment as a
nanny forfeits his or her right of privacy in the child’s bedroom,” Donohue wrote. “The majority does not explain why a nanny must assume that she will be surreptitiously spied upon by her employer after being entrusted with the care of that employer’s children or why the nanny should not assume instead that a parent who placed him or her in this position of responsibility also trusted that appropriate care would be given to the children.”

“There is nothing in the record to support the notion that an expectation of distrust by parents is ‘ubiquitous’ in our society, that all parents surveil their child’s caregiver or even that most babysitters (of varying ages) are aware of the general utilization of such surveillance devices,” she added.