• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Audio recording - personal conversation - admisible in court or not?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

1justiceseeker

Junior Member
What is the name of your state? CA

Domestic argument between spouse ... the husband records the conversation without the consent of the wife - because the aguments keeps happening too often for no reason ...

after a days, the couple get into a DV situation ... results in arrest of husband (who had recorded the conv). Over whelming evidance to implicate the wife who routinely initiates and escalate fights intentionally

a) Is the audio recording admisible in court?
b) Are there any adverse implications to the husband for bringing this up? civil or criminal?

This is what I know so far. According to CA law:
Consent of all parties is required for recording telephone conversations and face-to-face "confidential communications."

Civil damages are available.

Cellular and cordless telephone conversations are protected by state law.

Video recording of "confidential communications" is prohibited without consent.

The question is - what is deemed as 'confidential comm'?

Reference: http://www.rtnda.org/resources/hiddencamera/california.html

thank you.
 


bratboysluv

Junior Member
here's a question

How do I find out if it's the same in NJ, unless you know of course, then by all means please educate me. But here's the kicker, what if it's fabricated? In other words, an alleged conversation was recorded, but my voice isn't the one on the tape. He's trying to use this evidence against me. Can I also press criminal charges against him and/or can I sue?
 

CdwJava

Senior Member
PC 632(c) defines a confidential communication:

The term "confidential communication" includes 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 excludes a communication made in a public
gathering or in any legislative, judicial, executive or
administrative proceeding open to the public, or in any other
circumstance in which the parties to the communication may reasonably
expect that the communication may be overheard or recorded.


Further, from CPOLS published by the CA Attorney General:

"Confidential communication" means any communication in which a participant would have a reasonable expectation of privacy. (Pen.Code, § 632, subd.(c).) In Flanagan (2002) 27 Cal.4th 766, 768, 776, the California Supreme Court held that "a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded."

Additionally, unless the husband recorded the conversation under one of the exceptions to the Privacy Act, he can be charged with a violation of PC 632.

Exception - To Gather Evidence of Certain Crimes

Another portion of the Privacy Act permits anyone to electronically eavesdrop (monitor) or record a conversation as long as:

- one party (normally the victim or the police) has given consent; and

- the electronic eavesdropping or recording is being done in order to gather criminal evidence against the other party to the conversation (i.e., the caller); and

- the other party is suspected of having committed certain specified crimes which the evidence relates to.

The specified crimes are (1) extortion, (2) kidnapping, (3) bribery, (4) any felony involving "violence" against a person, and (5) obscene or harassing phone calls. (Pen. Code, § 633.5; Parra (1985) 165 Cal.App.3d 874.)


If the husband brings this up he COULD face additional prosecution. Keep in mind that it would not matter what the wife said ... his assaulting her is the crime, not what she said to egg him on. So, it could backfire big time!

Hubby needs to consult an attorney before he considers bringing this forth because he could get charged with another crime.

- Carl
 

tom in CA

Junior Member
But the premise is that the wife:
"...routinely initiates and escalate fights intentionally"
Presumably this means that she was violently and physically attacking him and not just verbally berating him.
If this is so, wouldn't he be protected under the criminal exception?

My apologies if this is repeat. My first identical inquiry didn't publish as I'm new at this site.
 

CdwJava

Senior Member
But the premise is that the wife:
"...routinely initiates and escalate fights intentionally"
Presumably this means that she was violently and physically attacking him and not just verbally berating him.
If this is so, wouldn't he be protected under the criminal exception?
Note the exceptions:
(1) extortion, (2) kidnapping, (3) bribery, (4) any felony involving "violence" against a person, and (5) obscene or harassing phone calls.​

A physical altercation is not usually a felony, thus the exception would not likely apply. In such a case, the defense would likely strenuously object to the inclusion of any audio tape and would likely prevail.

Also, Tom, please note that this thread is well over three years old.
 

divona2000

Senior Member
But the premise is that the wife:
"...routinely initiates and escalate fights intentionally"
Presumably this means that she was violently and physically attacking him and not just verbally berating him.
If this is so, wouldn't he be protected under the criminal exception?

My apologies if this is repeat. My first identical inquiry didn't publish as I'm new at this site.
tom, you are posting to a four year old thread, you should start your own post with your own question.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top