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Oregon Court of Appeals


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State v. Neff

Summarized by: 

Date Filed: 10-26-2011
Case #: A141960
Brewer, C.J. for the Court; & Haselton, J.; Nakamoto J. dissenting; Edmonds, S.J. dissenting
Full Text Opinion: http://www.publications.ojd.state.or.us/A141960.pdf

Criminal Law: Where two parties are recording the same conversation, when one party informs the other of the recording, it is sufficient to satisfy the notice requirement that the conversation is being obtained.

Defendant appealed from his conviction for violating Oregon's unlawful obtainment of a communication statute, which provides that a person may not obtain a “conversation by means of any device . . . if not all participants in the conversation are specifically informed that their conversation is being obtained.” Defendant was pulled over by a Police Officer who informed him that the encounter was being recorded. However, the officer was not aware that defendant was also recording the conversation on his cell phone. The officer later realized defendant was recording the encounter and charged him with violating the statute. The Court considered legislative intent, and found that the legislature, by using the passive voice in the statutes text generally indicates an intention to avoid specifying an actor. Thus, the whole statute differs from the section at issue by not having a consent provision or specifying the actor who must satisfy an exception. Maxims of statutory construction provide an interpretation that the legislature’s concern was in ensuring that parties know when a conversation is being recorded. Since the Officer provided notice that he was recording, he was not entitled to notice that another party was recording as well.