Instruction 7.560, Criminal Model Jury Instructions for Use in the District Court

WIRETAPPING

G.L. c. 272, § 99C.1

The defendant is charged with unlawful wiretapping. To prove

the defendant guilty of this offense, the Commonwealth must prove

three things beyond a reasonable doubt:

First: That the defendant used a device to hear, record or aid

another person in hearing or recording an oral or wire

communication;

Second: That the defendant did so secretly; and

Third: That the defendant did so willfully.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant used a device to hear,

record or aid another person in hearing or recording the contents of

an oral or wire communication. The contents of a communication

means any information concerning the identity of the parties to such

communication or the existence, contents, substance, or meaning of

that communication. A device is any device or apparatus which is

capable of transmitting, receiving, amplifying, or recording a wire or

oral communication. [Oral communications are defined as human

speech and any words spoken by a human.] [Wire communications

are defined as any communication made in whole or in part by the aid

of wire, cable, or other like connection between the point of origin and

the point of reception.]

SUPPLEMENTAL INSTRUCTIONS

1. Device exception.

A device does not include a hearing aid or similar

device which is being used to correct subnormal hearing to

normal. A device also does not include any telephone or

telegraph instrument, equipment, facility, or a component

thereof, being used by the subscriber, user or

communications common carrier in the ordinary course of

its business.

See Commonwealth v. Todisco, 363 Mass. 445, 452 (1973) (“The clear and obvious

legislative intent was to prevent the illegal use of devices external and extraneous to the

regular telephone equipment” and “not to prevent the repair of a telephone or the

replacement of a missing component part of the telephone in order to make it operable.”)

2. “Record” definition. To “record” something means to set

words down in writing or to cause sounds or visual images

to be transferred to and registered on something by

electronic means in such a way that the words, sounds or

visual images can be subsequently reproduced.

Commonwealth v. Moody, 466 Mass. 196, 209 (2013) (defining the term “record”).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt is that the defendant did so secretly. A

person hears or records secretly if the person(s) recorded or heard is

(are) unaware or otherwise not on notice that the defendant is hearing

or recording them.

See Commonwealth v. Morris, 492 Mass. 498, 517-518 (2023) (the term secretly

“apparently contemplates circumstances in which one openly hears a conversation and

secretly records it through the use of an intercepting device”); Commonwealth v. Du, 103

Mass. App. Ct. 469, 478 (2023), quoting Commonwealth v. Jackson, 370 Mass. 502, 507

(1976) (the term “secretly” does not “encompass[] only those situations where an

individual has a reasonable expectation of privacy; a recording is made “secretly” when it

is made without the actual knowledge of the person being recorded; the Commonwealth

may prove actual knowledge “where there are clear and unequivocal objective

manifestations of knowledge [on the part of the person being recorded). “A recording that

is made with the actual knowledge of all parties is not an interception, even if they have

not affirmatively authorized or consented to it.” Jackson, supra. See notes 1-3 for other

exemptions)

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant acted willfully. An act

is “willful” if it is done intentionally and by design, in contrast to an

act which is done thoughtlessly or accidentally. A person acts

willfully if they intend the conduct and its consequences.

See, e.g., Instruction 8.280 Willful and malicious destruction of property.

If the Commonwealth has proven all three of the elements

beyond a reasonable doubt, you should return a verdict of guilty. If

the Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not guilty.