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Are Secret Recordings Admissible in Criminal Courts?

Sep 07, 2017 by Mike McKneely in Criminal Defense

Unlike some other states, California has tough eavesdropping laws. In most circumstances, secretly recording a conversation or videotaping a meeting is illegal. If you are caught unlawfully recording a confidential interaction, you are not only prohibited from using that recording during court proceedings, but also you can be charged with a crime. However, there are exceptions to every rule, and there are times when secret recordings will be admissible during a criminal court case.

If you have been charged with a crime and prosecutors are trying to use secret recordings against you or you have audio or video you believe will help your case, contact our experienced Fresno criminal defense attorney at Michael McKneely, Criminal Defense Lawyer right away. We can review the evidence and circumstances to determine whether we should try to suppress the evidence, or fight to have it admitted.

Call us at (559) 443-7442, or contact us online for a free and confidential consultation.

California’s Rule on the Admissibility of Recordings

Every state has its own rules as to when recordings of conversations can be admitted as evidence into court. Based on California Penal Code section 632, for an audio or video recording of a confidential communication to be admissible, it must follow the “two-party” or “all parties” consent rule. Under this rule, every party to the private conversation must have given permission for it to be recorded. If only one party to the private conversation agreed and at least one other party was unaware of the recording, it is an illegally obtained recording and generally not admissible in court. However, there are exceptions to this rule.

California’s Exceptions to the Rule

A common exception to the two-party consent rule is if the conversation was not confidential or private. If circumstances show the participants who were unaware of the recording did not have a reasonable expectation of privacy, then a court may allow the audio or video recording into evidence. Examples of this include public speeches or local legislative hearings.

A second common exception to the two-party consent rule is based on Penal Code section 633.5. If the person recording the conversation believes they will collect evidence of extortion, bribery, kidnapping, or any felony involving violence against another person, then the audio or video may be admissible in court. For instance, if someone is attempting to bribe you, you can record the conversation without that other person’s permission and then take it to the police as evidence of the crime. Later on, this audio or video recording is likely admissible in court as evidence of that person’s attempt to commit a serious offense.

Applying the Rule to Parents and Minor Children

The exceptions to California’s all-parties consent rule for recordings of private conversations are not perfect. There are still gray areas and questions regarding when audio and video recordings are admissible in various situations. One issue that recently arose was whether a parent’s recording of a babysitter’s abusive interactions with her child was admissible.

The legal question presented to the court was whether a parent can consent to a recording on behalf of their child when they suspect a crime is being committed. In other words, can parents use a nanny cam and then admit the audio or video recording into court? The Fifth District Court of Appeal in California said yes. The court’s reasoning was that it was highly unlikely the California legislature meant to prohibit a parent from consenting to a secret recording on behalf of their child when abuse by a caregiver was suspected. To decide otherwise would be to say a parent was committing a crime when eavesdropping on a child’s conversations during worrisome circumstances.

However, this is not a hard and fast exception. The age and maturity of the child may be taken into account. Parents may be reasonable in acting on behalf of a young child who is unable to consent to the recording yet they may be unreasonable in secretly recording a conversation with an older adolescent who expected privacy.

Contact Our Criminal Defense Attorney for Help

If a secret recording is being used against you during a criminal case or you have an audio or video recording you believe should be admitted as evidence, contact Michael McKneely, Criminal Defense Lawyer. California has a strict law against recording private conversations without all participants’ consent. However, there are important exceptions. We will review the evidence in question and determine whether it is likely admissible or should be suppressed.

Call us at (559) 443-7442, or contact us online for a free and confidential consultation.

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