Recording Your Ex. . . Is It a Crime?

In contentious divorce cases, a party may sometimes think it will help their case if they can capture the other party saying certain things on a recording, unaware that making such a recording could cost them rather than help them in California.

The state of California has a two-party consent law for recording confidential communications, pursuant to Cal. Penal Code §632 (this also includes eavesdropping). Intentionally recording a confidential conversation without the consent of all parties is a violation of Penal Code §632 and may subject the recoding party to both civil and criminal penalties. A confidential communication is defined as a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto,” excluding communications made at public gatherings or public proceedings, “or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Cal. Penal Code §632).

A person should still be cautious about recording someone in a public place. A conversation taking place in a public or semi-public place does not necessarily mean the conversation is not confidential. Whether it’s reasonable to believe no one is listening or overhearing the conversation depends on the circumstances, so one cannot rely on the assumption that because it’s in public, it’s not private.

A violation of this section could result in a misdemeanor conviction and could also prove to be very financially costly. Per section 632, persons who violate this section may be subject to punishment “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” (Cal. Penal Code §632). Additionally, Penal Code section 637.2 provides that any person who has been injured by a violation may bring a civil lawsuit against the person who committed the violation and may recover damages for each violation.

Further, except as proof in an action or prosecution for a violation of this section, no evidence obtained in violation of Penal Code 632 is admissible in any court proceeding, pursuant to Cal. Penal Code §631(c). This means that if the party making the recording was intending to create evidence for use in his or her case, it cannot be used in court.

However, as an exception, when a party requests a domestic violence restraining order, they can request that the court allow them the right to record communications made to them by the restrained party that violate the Judge’s orders. If this request is granted, then the party has the right to record their communications with the other party that are in violation of the restraining order.

As a rule of thumb, in California, you shouldn’t record a conversation or phone call without the consent of all parties before starting your recording if your common sense is telling you it could be "private" or "confidential," unless you have an order from the court.

Whether you are divorcing or dealing with domestic violence issues, here at Mello & Pickering, LLP we have experience handling all kinds of cases. If you have questions about your family law issue, give us a call to set up a free 20 minute telephone conference or an in person meeting at (408) 288–7800.