California's stringent 'two-party consent' law regarding recording conversations is a crucial aspect of the state's legal landscape. It mandates that both parties to a conversation must be aware of and consent to any recording, making the act of recording without such consent unlawful.
California's Penal Code 632, which governs the recording of confidential communications, is a stringent law with significant penalties for violators. A defendant found guilty of unlawfully recording a confidential communication can face imprisonment in the county jail or even the state prison, along with a substantial fine.
This underscores the critical need for a clear understanding of the law, empowering individuals to navigate the legal landscape effectively and avoid potential legal pitfalls. Penal Code 632 broadly defines eavesdropping and recording. Virtually any analog or electronic technology that allows the listener to amplify, in the case of eavesdropping, or record a confidential communication between two or more parties will qualify under the wiretapping law.
Confidential communication is similarly defined in a relatively broad way. Any communication that, by its circumstances, indicates that the parties to the communication wished it to remain private will qualify. It's important to note that while California's two-party consent rule is strict, there are exceptions.
These include public meetings, political speeches, and musical concerts. Understanding these exceptions is crucial for effectively navigating the eavesdropping statute and being aware of your rights and responsibilities.
The most common defendants faced with Penal Code § 632 are individuals who are one party to such communications and record them without the knowledge of the other party. A closely related crime to eavesdropping is illegal wiretapping under California Penal Code 631.
Definition of Eavesdropping
As noted, California Penal Code 632 defines the crime of criminal recording of confidential communications, commonly known as eavesdropping.
PC 632 says, "Anyone who intentionally, without the consent of all parties in confidential communication, uses an electronic amplifying or recording device to eavesdrop or record communication, whether among the parties in the presence of each other or by means of a telegraph, telephone, or other device, will be punished by imprisonment in county jail for up to one year, a fine up to $2,500, or both jail and fine."
It's important to note that California's law on eavesdropping makes it a crime to a very specific type of eavesdropping. In order for the prosecutor to convict you, they will have to be able to prove, beyond a reasonable doubt, the elements of the crime listed in CALCRIM 1809 Jury Instructions:
- You intentionally recorded the conversation, not accidental.
- The other party had a reasonable expectation that the conversation was not being recorded.
- You didn't have the consent of all parties in the conversation.
- The eavesdropping involved the use of a recording or amplifying device.
- Your conduct harmed the other party.
Exceptions to the Law
Notably, there are exceptions to Penal Code 632 that make it legal to record a conversation. For instance, law enforcement or those acting at the direction of law enforcement are not subject to the provisions of this law.
For this reason, an undercover officer can record his interactions with a suspect without the suspect's knowledge without violating the law.
Evidence obtained can be lawfully introduced into court proceedings, even though a private party who engaged in the same conduct might be prosecuted for doing so.
Additionally, a limited exception is found in Penal Code 633.5 PC, which clarifies that one party to an otherwise confidential communication is not prohibited by law from recording the conversation without the other party's knowledge or consent if the purpose of making such a recording is to obtain evidence of the other party's commission of certain crimes, such as the following:
- Extortion,
- Bribery,
- Kidnapping,
- Domestic violence, or
- Felony violence.
Section 633.5 further provides that any evidence obtained pursuant to this exception is not rendered inadmissible by the fact that it was recorded without the other party's knowledge or consent. Thus, evidence of domestic violence, for example, recorded under circumstances which would otherwise render the conversation private, can be introduced at trial against the recorded party.
Also, a judge who issues a restraining order could include a provision allowing a domestic violence victim to record any prohibited communication made by the perpetrator that violates the restraining order under California Penal Code 273.6 PC.
Penalties for Eavesdropping
A violation of Penal Code 632 can be punished as either a misdemeanor or a felony, making the crime of eavesdropping or wiretapping a "wobbler" under California law, carrying the following punishments: .
- The maximum punishment for a first misdemeanor violation of PC 632 is one year in the county jail and a $2,500 fine.
- If charged as a felony, a violation can result in 16 months, 2 years, or 3 years in state prison as well as a $2,500 fine.
- If you have prior convictions for other privacy-related crimes, such as Penal Code 631, 632.5, 632.6, 632.7, or 636, and are found guilty of Penal Code 632, you could be fined up to $10,000 per subsequent violation in addition to jail time.
Why You Need a Defense Lawyer
Our California criminal defense lawyers could use various defense strategies to fight the eavesdropping charges. These include arguing that the communication was not "confidential " or that the recording was an accident.
We could also argue that the communication was reasonably capable of being overheard by a third party or even argue that the alleged victim is exaggerating the circumstances. If you are under investigation for one of these crimes, our experienced criminal defense attorneys can review the case details and discuss options. Eisner Gorin LLP is located in Los Angeles.
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