In our age of technology, recordings are happening all the time. Anywhere we go, it seems people constantly have their phones out and are recording their lives. It is second nature for many of us to pull out our cell phones and hit record in a variety of instances. Unfortunately, this issue comes up a lot in family law.  People often want to record their conversations, so they have proof of what the other person said later on. When they get to court with their recording, however, they may find out the judge will not listen to the recording because the other person did not provide consent to be recorded. This is because California is considered a “two-party consent” state.

The general rule in California is you cannot legally record another person without their consent. As such, if a recording is obtained without the other person’s consent, it may not be admissible evidence at court. Furthermore, violating California’s “two-party consent” laws may subject the recorder to criminal and civil repercussions. As such, non-consensual recording can affect not only your family law case, but it may have criminal and/or civil repercussions as well.

California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. Cal. Penal Code § 632(a) states:

(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

The rule applies to “confidential communications” — i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. A recording can essentially be any electronic technology that is used to listen, record, or even amplify, communication including hidden video cameras, cell phones, video cameras, etc.

The law on this issue is complicated because there are times when recording without the other party’s consent may be considered lawful, and thus make the recording admissible evidence. For example, if you record someone without their knowledge in a public or semi-public place like a street or restaurant, there may be an argument that the person whom you’re recording may or may not have an objectively reasonable expectation that no one is listening in or overhearing the conversation. This generally requires an analysis of the particular facts involved in the matter and is different in each case. As such, you should not assume that the law does not apply simply because you are in a public place.

Additionally, recording without the other person’s consent may be considered permissible if one party is recording confidential communication “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person”. Cal. Penal Code § 633.5. California Courts have made it clear that the applicability of this exception turns on the purpose of the recorder, not on the actual content of the recording. This exception is often argued when there are allegations of domestic violence because proving domestic violence is often difficult. As such, California Courts have also allowed recordings that were made to gather evidence of past and anticipated incidents of domestic violence admissible under this exception. However, this determining whether the recording fits this exception also requires a case-by-case analysis, and you should be careful in assuming the exception applies to your case.

If you are found to have recorded confidential communication without consent, you may also face civil penalties. Cal. Penal Code § 637.2 allows a victim of eavesdropping to pursue a civil lawsuit against the eavesdropper in civil court and seek money damages.

To be safe, in California you should always get the consent of all parties before recording any conversation. Additionally, if one party is in California and another party is in another state (even if that other state is a one-party consent state) California laws will apply to the other person outside the state of California for that person’s protection.

It is not worth the risk to record a confidential communication in California without the other party’s consent. If you cannot get their consent, and if your case does not fall under one of these exceptions, there are things you can do. Instead of taking secret recordings, try to support your family law case with lawfully obtained and admissible evidence. Such evidence might include: police report, witnesses statement, expert testimony, psychological evaluation, medical records, financial documents, business records, and photographs. A family law attorney experienced in this area will be better able to help you decipher what admissible evidence you have, and what you need to prove your case. Butler Law is here for you and can help take the guesswork out of what is necessary and what you can do.