Secret Recordings as Evidence

With the arrival of smart phones it is not uncommon for a party to have recorded private conversations with a spouse or witness. This raises the question of whether or not the recording can be used as evidence in court. Under the California Invasion of Privacy Act (“CIPA”), Penal Code Section 630 et seq. the answer is no, unless both parties to the conversation consent to the recording. Penal Code Section 632.

Since secret recordings are made without consent, the next question becomes was the recorded conversation carried on under circumstances where it was intended to be private or confidential. Penal Code Section 632(c). For example, if the conversation occurred in a private location then it is probably confidential and cannot be used in evidence unless it fits within the exception for crimes including domestic violence. Penal Code Section 633.5.

It also needs to be pointed out that recording conversations at a public gathering or under circumstances where the parties may reasonably expect that the conversation may be overhead can override the “confidential” communication requirement. However, because so many family law cases involve only the parties, for example, husband and wife or boyfriend and girlfriend, this exception rarely applies.

Therefore, if you have a secret recording you may not be able to use it in your family law case, and if you choose to do so you risk a criminal prosecution under Penal Code Section 632. However, before concluding that the secret recording is not useful, there is always the circumstances described in People vs. Crow (1994) 28 Cal.App.4th 440 and Frio vs. Superior Court (1988) 203 Cal.App.3d 1480. In Crow, the court held that “evidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence.” Crow at 452. In Frio, the court held that a witness cannot use the exclusionary provisions of Penal Code Section 632 as a shield for perjury. Frio at 1497.

So, according to Frio and Crow, after giving a witness the opportunity to correct their testimony and they refuse, you can play the recording for the witness to explain away the testimony they just gave under oath. However, even though the recording was allowed in evidence to combat perjury, this still does not absolve the recording party from potential criminal penalties relating to the unlawful communication. For some clients, the risk of criminal prosecution is worth the potential reward afforded by the recorded evidence. These factors should be discussed with an attorney before making a final decision.

As with all of our blogs, these comments are designed to give general information and are not intended to give you advice on your specific case. Anyone with recorded evidence is strongly advised to consult with an attorney before making a decision on the use of recorded conversations.

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