Are You Committing a Crime When Recording a Conversation? MAYBE

Modern technology gives people the ability to document, record and eavesdrop just about form of communication with ease. Recording devices such as wiretaps, digital recorders, and tape recorders have been used record telephonic and in-person conversations for decades. The purposes vary from criminal investigations, to documenting the terms of an oral contract to blackmailing. However, the use of recording devices has serious implications on people's right and expectation of privacy. In order to safeguard against potential abuse, many states including California have strict laws regarding the recording of conversations.

California Law Penal Code § 632, enacted under the California Invasion of Privacy Act, makes it illegal for an individual to monitor or record a "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 . California is known as a "two-party" state, which means that recordings are not allowed unless all parties to the conversation consent to the recording.

Under Penal Code § 632(c), "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, 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.

A violation of Penal Code § 632 can lead to a fine of up to $2,500 and/or imprisonment for up to a year. In addition, the violator may be subject to civil liability in the amount of $3,000 or three times the amount of any actual damages sustained as a result. Under the California Public Utilities Commission General Order 107-B(II)(A)(5), a recording is allowed if there is a "beep tone" warning. Under California Penal Code § 633, state law enforcement officials may eavesdrop and record telephone conversations.

Other states are known as "one-party" states in which the consent of one party to a conversation is all that is required in order for the conversation to be legally recorded. Federal law also allows recoding of telephone conversations as long as there is consent of at least one party to the call. 18 U.S.C. 119, § 2511(2)(d).

The Production of Illegal Recordings During Discovery Although generally not admissible at trial, illegal recordings are discoverable as they could lead to the discovery of admissible evidence. As such, if a recording is responsive to discovery requests, it should be timely produced. Otherwise, if it is later discovered that the recording was not produced and was intestinally withheld, severe discovery sanctions may be imposed. Counsel should carefully analyze whether production is appropriate. If a recording is responsive and is produced, counsel should advise their clients to seek advice of criminal counsel as there may be criminal implications and the potential need to assert the 5th Amendment right against self-incrimination.

The Use of Illegal Recordings at Trial In addition to the criminal and civil exposure above, there are also special rules with respect to using illegal recordings as evidence at trial. Generally, under California Penal Code § 632(d), an illegally recorded conversation is inadmissible in any court proceeding. However, California courts have carved out exceptions to this blanket exclusion in both civil and criminal actions.

In Frio v. Superior Court ( 1988) 203 Cal.App.3d 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code §632 as a shield for perjury. "The repugnance of an opportunity for a witness who was recorded to lie in this situation is akin to the circumstance of a criminal defendant who testifies at variance with an earlier statement ruled inadmissible because of a violation of Miranda.

Similarly, the evidentiary sanction of section 632, subdivision (d), 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 writings themselves, should not be burdened further by the presentation of evidence through witnesses who may lie with impunity." Id., at 1497-1498.

The Court of Appeals in the matter of People v. Crow, (1994) 28 Cal.App.4th 440 relied on Frio to support its holding that unlawful tainted evidence and communication could be used against defendant for impeachment purposes: "Evidence of confidential conversations obtained by eavesdropping or recording in violation of [Penal Code] section 632 is generally inadmissible in any proceeding (§632, subd. (d)), but can be used to impeach inconsistent testimony by those seeking to exclude the evidence. [Frio v. Superior Court(1988) 203 Cal.App.3d 1480, 1497...]" Id. at 452.

In a lawsuit, and based on the holdings in Frio and Crow, recordings obtained in violation of Penal Code § 631 & 632 can be used for impeachment purposes in trial. The rationale behind this is that the recording party should not be able to use Penal Code § 632(d) as a shield for perjury and lie with impunity about the contents of the recording because he or she knows the recording cannot be admitted into evidence. In addition, it appears that a party can use an illegal recording, transcription or notes to refresh his or her memory of the contents of the conversation. It is well established that evidence which is otherwise inadmissible can be used to refresh present recollection. However, the safest route is to avoid recording conversations without the other party's express consent!