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Can I use recorded telephone conversations as evidence?


Can I use Recorded Telephone Calls in my Restraining Order Case?

In restraining order cases, people often ask to use secretly recorded telephone conversations as evidence.  Recording telephone calls without permission presents several significant legal issues, both civil and criminal. The main issue is having the other person’s consent to record the conversation. California protects people’s right to privacy, even during telephone conversations.  California’s Invasion of Privacy Act has long been held to prevent one party to a telephone conversation from recording it without the other’s consent. However, an attorney can help you establish the other party’s consent which may allow the admissibility of recorded telephone conversation evidence. 

Recording telephone conversations without consent may subject you to legal problems. The California Invasion of Privacy Act (§ 630 et seq.) was enacted in 1967, replacing prior laws that permitted the recording of telephone conversations with the consent of one party to the conversation. The purpose of the act was to protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversation.

Every person who, intentionally and without the consent of all parties to a confidential communication eavesdrops upon or records the confidential communication shall be punished by a fine not exceeding $ 2,500 or imprisonment not exceeding one year

Not every telephone conversation is confidential. Under California Penal Code 632(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 on the call. Any communication made in a public gathering, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded are excluded.

Confidential telephone communication includes any communication carried on in circumstances that may reasonably indicate that any party to the communication desires it to be confined to the parties and excludes a communication made in a public gathering or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

A conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Frio v. Superior Court (1988) 203 Cal. App. 3d 1480 [250 Cal. Rptr. 819]; Coulter v. Bank of America (1994) 28 Cal. App. 4th 923 [33 Cal. Rptr. 2d 766]. A conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties. O’Laskey v. Sortino (1990) 224 Cal. App. 3d 241 [273 Cal. Rptr. 674]; Deteresa v. American Broadcasting Companies, Inc. (9th Cir. 1997) 121 F.3d 460.

This is an area that requires the careful oversight of a train attorney. If you have questions regarding recorded telephone conversations, please call the office immediately at (408) 816-2311.