10.8-3 Illegal Wiretapping -- § 53a-189
Revised to December 1, 2007
Note: Section 53a-189 contains two ways that eavesdropping occurs, wiretapping and mechanical overhearing of a conversation. This instruction is for wiretapping. See also Eavesdropping, Instruction 10.8-4.
The defendant is charged [in count __] with eavesdropping by unlawful wiretapping. The statute defining this offense reads in pertinent part as follows:
a person is guilty of eavesdropping when he unlawfully engages in wiretapping.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Wiretapping
The first element is that the defendant engaged in illegal wiretapping. "Wiretapping" means the intentional overhearing or recording of a telephonic or telegraphic communication or a communication made by cellular radio telephone by a person other than the sender or receiver of the communication by means of any instrument, device or equipment.
"Cellular radio telephone" means a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones.
Element 2 - Without consent
The second element is that the defendant did not have the consent of either party to the communication. If (he/she) received permission from one of the parties to the conversation to make a recording of the communication, then (he/she) cannot be found guilty of eavesdropping. A person does an act "without consent of another person" when (he/she) lacks such other person's agreement or assent to engage in the act.
Element 3 - Intent
The third element is that the defendant intended to overhear or record the communication. If the overhearing is unintentional, involving the malfunctioning of telephonic equipment, then (he/she) cannot be found guilty of eavesdropping. To be guilty of the offense of eavesdropping, there must be a deliberate and wilful intention to overhear the communication. A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.>
In summary, the state must prove beyond a reasonable doubt that 1) the defendant engaged in unlawful wiretapping, 2) (he/she) did not have the consent of either party to the communication, and 3) (he/she) intended to overhear or record the communication
If you unanimously find that the
state has proved beyond a reasonable doubt each of the elements of the crime of
eavesdropping, then you shall find the defendant guilty. On the other hand, if
you unanimously find that the state has failed to prove beyond a reasonable
doubt any of the elements, you shall then find the defendant not guilty.