Eavesdropping and Audio Recordings – Penal Code section 632 & Family Law Proceedings
Likely all of us have made a call and gotten voicemail. When you leave a message you are consenting to be recorded simply by leaving that voicemail message. Likely we have also made videos of family and friends doing enjoying themselves and participating in activities. This ability has been made easy by our modern technology. Why would there be a problem in a family law case using this type of technology. That all depends.
You have a duty to advise someone that you are recording them, because if you don’t advise them and try to use a video or an audio recording, it may be successfully kept out of evidence in your family law matter.
Penal Code sections 631 and 632: The California Legislature re-wrote some very old law (going back to 1872) concerning public policy limitations in litigation proceedings to help protect the privacy of this State’s citizens. In particular, the Legislature modernized the wiretapping statute (Penal Code section 631) and the eavesdropping and audio-recording statute (Penal Code section 632). In Family Law matters, technology still hasn’t quite progressed to make wiretapping a widespread or common issue, so this article does not address other than the reference, above. On the other hand, small and easily-concealable ‘smart’ phones give most everyone the ability to secretly video and audio-record anyone in their vicinity, and the ability to place an unwitting and unknowing person on the other end of the line on speaker phone such that third-parties to the phone call can hear what the person on the other end of the line is saying (and, potentially, these third-parties may be called upon act as witnesses against that person on the other end of the line). Penal Code section 632 makes certain forms of evidence inadmissible in any proceeding (including Civil Law cases, and thereby Family Law cases) where the evidence was obtained in violation of the stature. Not only is such evidence inadmissible, the author(s) and co-conspirator(s) in the gathering such evidence can be charged with a misdemeanor crime under the statute. So, the stakes can be high. Under Penal Code section 637.2, there is also a civil tort for damages against a violator of the statute held by the victim whose privacy was illegally incurred-upon. The elements of Penal Code section 632(a) are as follows:
A person intentionally
Uses an electronic amplifying or recording device
To listen to or record
A confidential communication via a device such as a telephone
Without either the knowledge or concerns of a party to the communication
Penal Code section 632(b) goes on to include agents, business entities, and other legal entities within the definition of the “person” element. Penal Code section 632(c) goes on to broadly define “confidential communication” as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto” but excluding statements made in public gatherings, during government proceedings, and “in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
Some case law has emerged concerning the interpretation and scope of these elements, inclusions, and exclusions. But the case law is thin and is still fleshing out through our trial and appellate courts in California and on the federal level. To date we have reported decisions focusing on debt collection practices (see Kuschner v. Nationwide Credit, Inc., E.D.Cal.2009, 256 F.R.D. 684), persons in the custody of law enforcement (see People v. Chandler (App. 1 Dist. 1968) 68 Cal.Rptr. 645, 262 Cal.App.2d 350), and in criminal proceedings for recordings not excepted by the statute (i.e. lawfully by law enforcement; People v. Guzman (2017) 11 Cal.App.5th 184, Cal.Rptr.3d 509 – holding that Penal Code section 632’s exclusionary rule for evidence obtained as a result of recording a confidential communication without the consent of all parties was superseded to the extent it is invoked to suppress relevant evidence in a criminal proceeding under the ‘Right to Truth–in–Evidence,’ Cal. Const. Art. 1 section 28 of the California Constitution, and therefore was unconstitutional as-applied in that case).
Application in Family Law Proceedings: One of the recent cases I encountered with implications under Penal Code section 632 involved a mother, while east of the Mississippi River, who allegedly made a suicidal threat and threat to harm her child while on the telephone with the father who was in California. Apparently, the father had put this call on speaker phone and either he himself or one of his family members audio-recorded the conversation. Subsequently, the mother moved to California and lived with the father for nearly two years without further incident.
The recording was the center-piece of the father’s case for primarily physical custody when the parties broke up and the mother sought an order to return to her home state with the child, and a restraining order against the father. During my meet and confer conversation with the father’s attorney, the day prior to the hearing, I learned of the audio recording. I immediately prepared a Motion in Limine to suppress the audio recording primarily on the grounds that it violated Penal Code section 632 (as well as objection to relevancy undue prejudice as the recorded statements allegedly occurred two years ago). Not only was the entirety of the recording suppressed, the Court stated to the litigants that it was a crime to have recorded the mother without her knowledge or consent (there was no ‘this call may be recorded’ warning given to the mother at the beginning of the recording).
The Court was correct both as to the recording itself, as well as the father placing the mother on speaker phone so that the father’s family member could record the statements on another device. Each of these acts, individually, were violations of Penal Code section 632, and both the father and the family member were co-conspirators with the other for each act. The evidence suppressed, the mother received her desired relocation back to her home state with the child, and she was very pleased.
*** In order to have a recording entered into evidence the recording must be fully transcribed and provided to the Court, along with the recording.