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10.8-4  Eavesdropping -- § 53a-189

Revised to December 1, 2007

Note:  Section 53a-189 contains two ways that eavesdropping occurs, wiretapping and mechanical overhearing of a conversation, which are defined in § 53a-187.  This instruction is for mechanical overhearing of a conversation.  See also Illegal Wiretapping, Instruction 10.8-3.

The defendant is charged [in count __] with eavesdropping.  The statute defining this offense reads in pertinent part as follows:

a person is guilty of eavesdropping when he unlawfully engages in mechanical overhearing of a conversation.

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Eavesdropping by mechanical device
The first element is that the defendant unlawfully listened in on or recorded a conversation or discussion, at which (he/she) was not present,¹ by means of any mechanical instrument, device or equipment.  "Unlawfully" means not specifically authorized by law.

Element 2 - Without consent
The second element is that the defendant did not have the consent of either party to the conversation.  If (he/she) received permission from one of the parties to the conversation to listen in on the conversation, 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 listen in on the conversation.  If the overhearing is unintentional, 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 conversation.  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.>

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant unlawfully listened in on a conversation or discussion by some mechanical means, 2) (he/she) did not have the consent of either party to the conversation or discussion, and 3) (he/she) intended to listen in on it.

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.
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¹ A person may tape his or her own conversation whether he or she is the caller or the one being called.  State v. DeMartin, 171 Conn. 524, 544 n.13 (1976).