<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Inquirer:
Is it legal to tape record threats and/or harrasmments by an employer?
Would they be admissable?
I understand that wire-tapping and phone recording is off limits without consent from the other party. I can't see that this would apply in a personal setting.
Also, would such laws be different at the State level -vs- Federal?<HR></BLOCKQUOTE>
My response:
Tape Recorded Evidence - Tempting, But Is it Legal?
Issue Presented
Wife consistently verbally abuses her Husband, calling him stupid, using profanity, and at times threatening him physically. Often times this happens in front of the parties' two children, ages three and nine. Wife of course doesn't see this as a problem, but Husband does. In fact, the verbal abuse and other problems in their relationship finally prompt Husband to initiate divorce proceedings. After consulting an attorney, Husband tape records Wife one evening during a heated argument. His recordings include her yelling insults at him and telling him: "I'll kill you before I'll let you leave me!"
Thereafter, Husband's counsel files a motion seeking sole custody of the children and exclusive use of the family home pending trial, and restraining orders barring Wife from contacting him or coming within 100 yards of the residence, except for visitation pick up and drop off. The statements of Wife's which Husband has on tape are relevant to custody because they demonstrate her temper and instability and also may show Wife's willingness to verbally abuse Husband in front of the children. The statements on the tape also provide grounds for the restraining orders Husband seeks. At the hearing, Wife testifies that she has never raised her voice to Husband or threatened him in any way. She calls his accusations absurd, as he is much larger physically than her and would have no reason to fear violence from her. Wife also testifies that she is especially careful never to argue with Husband in front of the children.
Husband now wishes to introduce the tape recording, thus raising the following issues:
1) What law, if any, is violated if Husband introduces the recording after laying a proper foundation?
2) Could Husband's attorney be liable if Wife can show that he or she instructed Husband to record Wife and or assisted in the transcription of the tape?
3) Would the result differ if the parties' children were or were not present during the argument which Husband taped?
4) Do the above answers vary from state to state?
5) Does federal law change the outcome?
Tape Recorded Evidence - Tempting, But Is it Legal?
Analysis and Discussion
A. General California Rule
The starting point when considering the above questions in California is Penal Code section 632, California's Invasion of Privacy Act, which pertinently states:
(a) Every person who, intentionally, and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device . . . records [a] confidential communication, whether the communication is carried on among the parties . . . by means of a . . . telephone . . . shall be punished by a fine . . . or imprisonment . . . .
(c) 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 any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of ... recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.
Upon reading this section, one might conclude that any recording, however damaging to the opposing side, is useless. In the majority of situations, that is true. However, the analysis does not end there.
B. Exceptions to General Rule
Despite the seemingly air-tight and sanctioning language of section 632, California courts have carved certain exceptions from the rule which would allow the tape recorded evidence to be introduced at Husband and Wife's hearing.
First, in Frio v. Superior Court (1988) 203 Cal.App.3d 1480, the appellate court carved out two exceptions to the Privacy Act's prohibition. They are as follows: (i) the use of the illegally acquired evidence to refresh recollection, and (ii) use of the transcription of the recording for impeachment.
Past Recollection Refreshed
As stated by Judge Learned Hand, Jr.: "Anything may in fact revive a memory: a song , a scent, a photograph, an allusion, even a past statement known to be false." (United States v. Rappy (2d Cir.1946) 157 F.2d 964, 967.) The illegal recording thus transcribed may be used to refresh a witness's recollection of a conversation. However, use of the transcription to refresh recollection does not involve reading or offering it into evidence. As such, Section 632 is not violated by using the transcript of the conversation in that manner. The witness's recollection of the communications derives in the first instance not from the illegal tape recordings nor the notes prepared therefrom, but from the "independent source" of the witness's lawful, firsthand participation in the conversations. The testimony thus remains the witness's independent recollection of the event.
Nothing in the Privacy Act can be read so as to conclude a party whose confidential communications have been recorded gains greater protection than if they had not been so intercepted. The statute neither can, nor purports to, remove the risk inherent in speaking, namely, the risk the party to whom the remarks are addressed might later repeat the conversation." (Frio, 203 Cal.App.3d at 1493.)
Past Recollection Recorded Distinguished
Because past recollection recorded involves a witness unable to testify fully and accurately absent use of a written memorandum, such testimony falls within the proscription of section 632. Husband may not read the tainted recordings nor the notes derived from them into evidence.
Use of Transcript for Impeachment
The repugnance of an opportunity for a witness who was recorded to lie on the witness stand is akin to the circumstances of a criminal defendant who testifies at variance with an earlier statement ruled inadmissable because of a violation of Miranda. (Frio at p. 1497.)
The Frio court invokes the rationale of Harris v. New York (1971) 401 U.S. 222, 225-226, in which the Supreme Court stated: "Every criminal defendant is privileged to testify in his or her own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Thus it seems reasonable to conclude that no privilege, statutory or otherwise, protected defendant from impeachment . . . ."
The Frio court reasoned that similarly, the evidentiary sanction of section 632 cannot be construed so as to confer upon a testifying witness the right to commit perjury. The truth-finding function of trial, already strained by exclusion of the recording itself, should not be burdened further by the presentation of evidence through witnesses who may lie with impunity. (Frio at p. 1488; see also People v. Crow (1994) 28 Cal.App.4th 440, 452, in which the court cites to Frio's impeachment rationale with approval.)
C. Attorney Liability and the Litigation Privilege
The litigation privilege of Civil Code section 47, subdivision (b) shields counsel of defamation and other tort liability for actions taken in the course of any judicial proceeding. Based on this, it would appear that even if an attorney aided a c
