Under normal circumstances, California is a "two-party consent state" regarding recording communications. In other words, one person cannot legally record the conversation without the other's knowledge or permission.
In fact, doing so can get you charged with the crime of eavesdropping, defined under Penal Code 632 PC.
However, Penal Code 633.5 PC provides a clear exception to this rule by stating that it is legal to create a surreptitious recording for the sole purpose of gathering evidence for certain types of crimes—and in fact, such recordings may be used as evidence to prove a crime.
PC 633.5 says, “Sections 631, 632, 632.5, 632.6, and 632.7 do not prohibit 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, including, human trafficking, as defined in Section 236.1, or a violation of Section 653m, or domestic violence as defined in Section 13700.”
Simply put, Penal Code Section 633.5 states it is lawful for a crime victim to record the subject making threats of harm.
For example, if a party to a divorce is threatening physical harm, the recording would probably be admitted in the proceedings. However, if they said they would hide all assets and there was no threat of physical violence, the recording would have difficulty qualifying for the exception.
In 1967, California lawmakers passed what is commonly known as the “Invasion of Privacy Act.” This law imposes criminal penalties to deter people from invading the privacy of another. Specific forms of eavesdropping are a crime, such as Penal Code 632 PC. Let's review this state law in more detail below.
What Does the Law Say?
Penal Code 633.5 makes explicitly it legal for a private citizen to record a conversation without the other party's permission IF it is for the purpose of obtaining evidence of the commission of any of the following crimes:
- Kidnapping under Penal Code 207 PC;
- Extortion under Penal Code 518 PC;
- Bribery under Penal Code 67 PC;
- Human trafficking under Penal Code 236.1 PC;
- Annoying phone calls under Penal Code 653m PC;
- Any felony involving violence against the person doing the recording, such as domestic violence and Penal Code 261 PC rape.
The primary intent behind this law is that victims or potential victims of these crimes can gather evidence to get the perpetrator convicted without being prosecuted for eavesdropping themselves.
Penal Code 633.5 applies only to private citizens, not peace officers or other members of law enforcement or government agencies. Under PC 633, these agents already have immunity from eavesdropping laws and may record private conversations during lawful criminal investigations.
The other related crimes for Penal Code 633.5 PC secret recordings include:
- Penal Code 631 PC wiretapping;
- Penal Code 647i PC peeking while loitering;
- Penal Code 647j PC criminal invasion of privacy.
What About Admissibility in Court?
Penal Code 633.5 PC does two things:
- It exempts the person doing the recording from being charged with a crime if the recording is made to obtain evidence of any of the crimes above; and
- It allows those recordings to be admissible as evidence in court when prosecuting the perpetrator for any of these crimes.
What Are Some Examples?
EXAMPLE 1: Bob is a small business owner whom members of the local mob are harassing to pay money for "protection" to prevent bad things from happening to his business (a form of extortion).
During one of these visits, Bob secretly records the conversation on his smartphone to prove it is happening. Bob's actions qualify as an exemption from eavesdropping under PC 633.5 and may be used as evidence if the person goes to trial.
EXAMPLE 2: Emma is a victim of domestic violence. She calls the police to report it, but they cannot arrest her abuser without additional proof.
Emma secretly records a phone call with her abuser to gather evidence that can be used in court. Because she is trying to obtain proof of a crime, this recording will likely qualify as an exception under PC 633.5.
EXAMPLE 3: Justin knows two of his classmates are involved in drug trafficking, so he decides to play sleuth and get evidence against them to turn them into the police. He secretly listens in on a conversation the classmates are having and captures it on his phone.
Despite Justin's good intentions, his actions do NOT qualify as an exemption under PC 633.5 because drug trafficking is not one of the crimes listed in the law. Not only will his recording be inadmissible as evidence, but Justin could also be charged with illegal eavesdropping under PC 632.
EXAMPLE 4: Jerri is amidst a divorce from her husband, Matt. She wants full custody of the kids, but she knows she can't get it unless she can provide evidence that he is an unsafe parent.
Although Matt has never committed violence or abuse against her or the kids (or threatened to do so), Jerri secretly turns her phone recorder on during their conversations, looking to "find dirt"—specifically, evidence of his illicit drug habit and excessive drinking—so she can present this evidence in family court to get his custody rights revoked.
Not only will Jerri's recordings be inadmissible in court because they don't qualify as exemptions under PC. 633.5, but Jerri can be arrested and charged with eavesdropping in violation of her husband's privacy.
EXAMPLE 5: Harold's daughter June has been kidnapped and held for ransom. The kidnappers call Harold to discuss the terms of June's release. Harold records the call without the kidnappers' knowledge seeking to get evidence of the kidnapping. Harold's recording falls under PC 633.5 and may be used as evidence in court if/when the kidnappers are caught.
Eavesdropping Exceptions for Citizens
As noted, Penal Code Section 633.5 PC says private citizens can be exempted from eavesdropping laws if they are recording conservations to gather evidence of certain crimes.
The exemption applies if the person recording is a party to the conservation and recording it to get the evidence they reasonably believe is related to the commission of certain crimes by the other party.
Under these circumstances, if a private citizen records the call, the recording might be admitted as evidence in court to prosecute a defendant for one of the above-listed crimes.
The laws on California Penal Code 632 PC eavesdropping and Penal Code 633.5 secret recordings are often complex and confusing.
It would be best if you did not record conservation without notifying the other individual to avoid potential criminal or civil penalties. Further, it would be best if you were careful not to make incriminating statements.
If you have been accused of violating invasion of privacy laws, you can contact us by phone or contact form to review the case details and legal options. Eisner Gorin LLP is located in Los Angeles, CA.