audio and video recordings  & Family Court

Today, almost everyone can record audio and video simply by using their cellular telephones. These recordings often record events that can be extremely helpful to a Judge when deciding issues in Family Court, especially when one party denies that some event happened or not.

Given the power of these recordings to establish facts and document events, there shouldn’t be any problem using them in court, right? Well, maybe and maybe not depending on how the recording was obtained, what it contains and other circumstances.

First, it’s important to understand that under California law, a person’s right to privacy is extremely important. Many years ago, the California legislature realized that it was becoming easier to eavesdrop on private communications and as a result passed the Invasion of Privacy Act, which can be found in Penal Code § 630 and the following statutes. The intent was to deter the invasion into private places. For example, inside your house is a private place, Disneyland is not. Among the various things the Privacy Act prevents is the recording of private communications (like those in your house) and makes the recording of those events punishable by civil fine and / or criminal prosecution.

Penal Code § 632 states, in part, A “person who, intentionally and without the consent of all parties to a confidential communication … record[s] the communication, [regardless of] whether the communication is carried on among the parties [or] in the presence of others …shall be punished by a fine.” For section 632 to apply, however, a person must record the communication by use of an electronic device (i.e. a cell phone, video camera or tape recorder) in a private place.

If the communication was not made in a public place, or made with the consent of all of the parties who were recorded, Section 632 makes the recording inadmissible in any court proceeding, absent an exception (discussed below).

The recording must be intentionally recorded. The clearest example of intentionally recording a communication is pulling out your cell phone, opening the phone application and pressing record. Conversely, installing a nanny cam that does not record audio might not be a violation of the law, depending on what the camera captures. Remember though, under California law, privacy generally trumps all. Moreover, what constitutes communication has been liberally defined by the Court and includes things like words, symbols and hand gestures. In those rare cases when the recording was accidental, the person offering the recording as evidence has the burden of convincing the Court of its admissibility.

What is a confidential communication anyway? Essentially, it is any communication made under circumstances that “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 other circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Among the most applicable exceptions can, however, be found in family law proceedings. Under Penal Code § 633.5, which states that nothing “… prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or” recording annoying and harassing phone calls. An illegal recording can also be used in court proceedings to refresh a witness recollection of events and for impeachment purposes.

As you can hopefully understand from this article, admitting recorded communications (or keeping them out) can be a very fact specific and technical process. Don Werno is a Certified Family Law Specialist with more than 20 years of experience guiding his clients through the oftentimes complicated family law process. Contact him today to see how he can help you.

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