Illegally Recorded Conversations Can Be Admissible Evidence In A Civil Lawsuit

Written on 01/05/2024

Peter Lopresti was a captain for the police department in the Township of Old Bridge, New Jersey. He was termi­nated after Lieutenant Robert Schleuter surreptitiously recorded him making “sexist, harassing and discriminatory comments” while speaking with other employees of the police department. Lopresti challenged his termination at a disciplinary hearing, where the hearing examiner concluded that the Township proved its case, relying largely on the Schleuter recording.

Lopresti appealed the decision to the Superior Court, which held that the Schleuter recording was inadmissible, and there was no other independent evidence to support the termination.

The Township appealed and the Court reversed again, finding that the trial court improperly excluded the Schleuter recording from evidence. The trial court’s rationale for doing so was that the recording “violated (1) the police department’s rules and regulations; (2) the Township’s employee handbook; (3) the plaintiff’s right to privacy; and (4) the plaintiff’s constitutional rights and protection against unlawful search and seizure.”

The trial court concluded that this improperly obtained evidence should be excluded from the record. However, the trial court misapplied the Exclusionary Rule – a legal principle designed to keep illegally-obtained evidence out of criminal proceedings – to the civil context. Since Lopresti’s challenge to his termination was a civil lawsuit, the Exclusionary Rule should not have been applied and Schleuter’s recording should have been accepted into evidence.

The Township appealed the trial court’s decision to the statewide ap­pellate court, and won. The appellate court considered and rejected the trial court judge’s contention that the Ex­clusionary Rule should apply because Lopresti’s disciplinary hearing was a “quasi-criminal prosecution of a police officer.” But because Lopresti’s case was in no way criminal, nor a prosecution, the Exclusionary Rule should not have been applied. The Court thus upheld Lopresti’s termination.

Lopresti v. Township of Old Bridge, 2023 WL 6938851 (Super. Ct. N.J. App. Div. 2023).