Garland and Garland

Under ORS 165.540, for a residence exception to apply to the evidence the “location of the performance of the act of recording” must take place inside the home. See State v. Rainey, 294 Or App 284, 288-90 (2018).

Mother appealed an award of custody of her children to the father. Mother assigned error to the court excluding an “audio recorded conversations between father and their children.” The trial court contended that the evidence was not admissible under ORS 165.540 which prohibits recordings obtained in certain manners. In order for the recordings to be admitted, it would have to fall “under the doctrine of vicarious consent” and the mother must “prove that her actions were motivated by a reasonable concern as to the well-being of the children.” Mother argued that because the recordings were taken at her residence they should be permitted. The father agreed with the trial court, and argued the recordings were illegal. The Court found that, under ORS 165.540, for a residence exception to apply to the evidence the “location of the performance of the act of recording” must take place inside the home. See State v. Rainey, 294 Or App 284,288-90 (2018). This means that the trial court did err in excluding some of the evidence, as some of the mother’s recordings took place in her home. However, the Court found that error did not “affect[] the substantial rights of the parties.” Affirmed.