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recording conversation

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J

jwkim

Guest
What is the name of your state?

California

Is it legal/illegal to record telephone conversations to be used as evidence in small claims court?
 


P

PaulE

Guest
Laws vary from state to state, but usually as long as one of the parties involved in the conversation are aware of the recording, it is legal.
 

JETX

Senior Member
PaulE is NOT correct when he said, "as long as one of the parties involved in the conversation are aware of the recording, it is legal".

In fact, some states require consent and/or knowledge of BOTH parties.

For example:
California requires consent of ALL parties:
"Cal. Penal Code § 631, 632 (Deering 1999): It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties."

Texas only requires one party.
"Texas Penal Code § 16.02, 18.20 (2000): So long as a wire, oral or electronic communication -- including the radio portion of any cordless telephone call -- is not recorded for a criminal or tortious purpose, anyone who is a party to the communication, or who has the consent of a party, can lawfully record the communication and disclose its contents."
 

Beth3

Senior Member
Not necessarily true, Paul. Remember Linda Tripp and Monica Lewinski? Linda got into big time and expensive legal trouble because she tape recorded phone conversations without Monica's knowledge.

I don't know what CA reg's are on this but the poster needs to find out FOR SURE what his/her State's law is on this before proceeding.
 
J

jwkim

Guest
D-Day

got the recorder wired up and ready to go; I hate snoops myself but when you take an honest man's dough then celebrate with his wife, its principles I tell ya, principles.

appreciate the replies

"weasel"
 

JETX

Senior Member
JW: Did you understand that recording ANY telephone conversation in California without the permission and/or knowledge of ALL parties is a criminal act???

CA Penal Code:
"632. (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, eavesdrops upon or records 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), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment."

Assuming you now recognize that your actions will be illegal, lets look at why you might do this:
1) A court will NOT accept the recording as evidence or testimony, so you can't use it in any legal proceeding.
2) If you try to use it against someone you will have to acknowledge that you committed a criminal act. That sort of defeats the purspose of doing it.... correct??
 
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I AM ALWAYS LIABLE

Senior Member
My response:

As an adjunct to Halkets absolutely correct interpretation of California law regarding the recording of telephonic conversations, and to throw a few Appellate opinions into the mix, the following, hopefully will give our writer a fuller "flavor" of what lies ahead for him - - both criminally and civilly.

Under California law, "every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication" shall be subject to fine or imprisonment. [Ca Penal § 632 (emphasis added); Coulter v. Bank of America Nat'l Trust & Sav. Ass'n (1994) 28 Cal.App.4th 923, 929-930, 33 Cal.Rptr.2d 766, 771--employees' conversations with supervisors and coworkers, which employee surreptitiously recorded in anticipation of litigation against employer, were "confidential" under § 632 and improperly recorded without consent]

Evidence obtained through electronic eavesdropping or recording of a confidential communication in violation of Ca Penal § 632 is inadmissible in any proceeding (except as proof in a criminal prosecution or tort action for a violation of Ca Penal § 632). [Ca Penal § 632(d); see Frio v. Sup.Ct. (Ierace) (1988) 203 Cal.App.3d 1480, 1490, 250 Cal.Rptr. 819, 824]

Ca Penal § 632 prohibits the surreptitious recording "by means of any electronic amplification or recording device" without the consent of all parties. [Ca Penal § 632(a); see Frio v. Sup.Ct. (Ierace), supra, 203 Cal.App.3d at 1489, 250 Cal.Rptr. at 823]

A secret recording may constitute an intrusion on privacy even if the matters recorded are not confidential: "(A) person may reasonably expect privacy against the electronic recording of a communication, even though he or she had no reasonable expectation as to confidentiality of the communication's contents." [Sanders v. American Broadcasting Companies, Inc. (1999) 20 Cal.4th 907, 915, 85 Cal.Rptr.2d 909, 914]

IAAL
 
J

jwkim

Guest
what if permission is granted by the court and I hire a private detective?
 
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I AM ALWAYS LIABLE

Senior Member
jwkim said:
what if permission is granted by the court and I hire a private detective?

My response:

That's not how it works. The court cannot grant you "sua sponte" permission to invade someone else's privacy in a civil matter. If you can't get permission from the other party, then you're out of luck. Your method only happens in criminal investigations and with a warrant.

IAAL
 
P

PaulE

Guest
That's why I said laws vary from state to state. I should of known California would be a state that would handcuff somebody from obtaining any kind of evidence.
 

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