Recording public conversations and using that as evidence (California penal codes)

[Soul Reputation]

Slightly complex first ammendment question: Can a voice recording made with a digital voice recorder/micro-cassette tape be accepted as evidence in a California court? Or is it against the law to record a conversaton? Scenario(s): these recordings were not made on the telephone. I need to be clear that in both cases a telephone was not involved. In both cases communication between the two parties was done in person and/or face to face.
In scenario #1 the conversation took place outdoors on public property where it is not reasonable for any one person to expect any measure of privacy. In other words it was made in a place where any person can come and go 24/7/365.
In scenario #2 the exact same dynamic is in place though with a slightly different set of circumstances: that conversation was made indoors in the hallway of a building, a building that is considered to be private property (as an example say for instance the hallway in a hotel, but NOT in a private room). As in scenario #1, it would be reasonable to conclude that a person would not or could not expect to receive any measure of privacy because inhabitants and/or employees of the hotel could come and go at will 24/7/365. Again, both questions pertain to the state of California.

 

[sourceninja]

Usually as long as one of the parties knows it is being recorded that is acceptable. It varies from state to state however.

 

[Jeeebus]

Usually as long as one of the parties knows it is being recorded that is acceptable. It varies from state to state however.

That's the federal wiretapping law.

California is a two-party consent state.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=630-638

There is no clear answer to either scenario. Just because you're outdoors in public doesn't mean you don't have an objective belief that the conversation would be private. Same goes with the second scenario. A court would consider all the facts, not just a two line narrative.

 

[DesiPower]

If there was a clear answer to this then all the lawyers would commit a mass suicide :biggrin:

 

[DivideBYZero]

If there was a clear answer to this then all the lawyers would commit a mass suicide :biggrin:

We must find this answer. And a video camera.

 

[RaistlinZ]

To my knowledge, in Cali a person has to be made aware that their conversation is being taped in order for it to be admissible as evidence. Doesn't matter where the conversation took place.

 

[911paramedic]

Turn on your video as well and make a documentary. :thumbsup:

 

[Nintendesert]

Beyond being admissible in court, the person recording without the other person's consent may be committing a felony in the state of California.

 

[her209]

Hopefully this outcome will be more common place:

http://weblogs.baltimoresun.com/news/crime/blog/2010/09/motorcyclist_wins_taping_case.html

Motorcyclist wins taping case against state police

A Harford County Circuit Court judge ruled this afternoon that a motorcyclist who was arrested for videotaping his traffic stop by a Maryland State Trooper was within his rights to record the confrontation.

Judge Emory A Pitt Jr. tossed all the charges filed against Anthony Graber, leaving only speeding and other traffic violations, and most likely sparing him a trial that had been scheduled for Oct. 12. The judge ruled that Maryland's wire tap law allows recording of both voice and sound in areas where privacy cannot be expected. He ruled that a police officer on a traffic stop has no expectation of privacy.

"Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public," the judge wrote. "When we exercise that power in public fora, we should not expect our actions to be shielded from public observation."

 

[Soul Reputation]

Beyond being admissible in court, the person recording without the other person's consent may be committing a felony in the state of California.

With all due respect I am glad to be able to say that you are 100% wrong if your statement is an across the board generalization. And thank god for that because some freedom fighters need a little luck. It is nowhere close to being a felony meaning you will never do jail time. And to answer my own question that I asked in the thread starter: Of course you can use a secretly recorded conversation as evidence in a California court of law!

 

[BoomerD]

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=630-638
(a few brief snippets of the law)

631. a) Any person who, by means of any machine, instrument, or
contrivance, or in any other manner, intentionally taps, or makes any
unauthorized connection, whether physically, electrically,
acoustically, inductively, or otherwise, with any telegraph or
telephone wire, line, cable, or instrument, including the wire, line,
cable, or instrument of any internal telephonic communication
system, or who willfully and without the consent of all parties to
the communication, or in any unauthorized manner, reads, or attempts
to read, or to learn the contents or meaning of any message, report,
or communication while the same is in transit or passing over any
wire, line, or cable, or is being sent from, or received at any place
within this state; or who uses, or attempts to use, in any manner,
or for any purpose, or to communicate in any way, any information so
obtained, or who aids, agrees with, employs, or conspires with any
person or persons to unlawfully do, or permit, or cause to be done
any of the acts or things mentioned above in this section, is
punishable by a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in the county jail not exceeding one
year, or by imprisonment pursuant to subdivision (h) of Section 1170,
or by both a fine and imprisonment in the county jail or pursuant to
subdivision (h) of Section 1170. If the person has previously been
convicted of a violation of this section or Section 632, 632.5,
632.6, 632.7, or 636, he or she is punishable by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment in the county
jail not exceeding one year, or by imprisonment pursuant to
subdivision (h) of Section 1170, or by both that fine and
imprisonment.

632. (a) Every person who, intentionally and without the consent of
all parties to a confidential communication, by means of any
electronic amplifying or recording device, eavesdrops upon or records
the 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, except a radio, shall be
punished 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. If the
person has previously been convicted of a violation of this section
or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be
punished by a fine not exceeding ten thousand dollars ($10,000), by
imprisonment in the county jail not exceeding one year, or in the
state prison, or by both that fine and imprisonment.
(b) The term "person" includes an individual, business
association, partnership, corporation, limited liability company, or
other legal entity, and an individual acting or purporting to act for
or on behalf of any government or subdivision thereof, whether
federal, state, or local, but excludes an individual known by all
parties to a confidential communication to be overhearing or
recording the communication.

632.5. (a) Every person who, maliciously and without the consent of
all parties to the communication, intercepts, receives, or assists
in intercepting or receiving a communication transmitted between
cellular radio telephones or between any cellular radio telephone and
a landline telephone shall be punished by a fine not exceeding two
thousand five hundred dollars ($2,500), by imprisonment in the county
jail not exceeding one year or in the state prison, or by both that
fine and imprisonment. If the person has been previously convicted of
a violation of this section or Section 631, 632, 632.6, 632.7, or
636, the person shall be punished by a fine not exceeding ten
thousand dollars ($10,000), by imprisonment in the county jail not
exceeding one year or in the state prison, or by both that fine and
imprisonment.

633.5. Nothing in Section 631, 632, 632.5, 632.6, or 632.7
prohibits 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, or a violation of
Section 653m. Nothing in Section 631, 632, 632.5, 632.6, or 632.7
renders any evidence so obtained inadmissible in a prosecution for
extortion, kidnapping, bribery, any felony involving violence against
the person, a violation of Section 653m, or any crime in connection
therewith.

633.6. (a) Notwithstanding the provisions of this chapter, and in
accordance with federal law, upon the request of a victim of domestic
violence who is seeking a domestic violence restraining order, a
judge issuing the order may include a provision in the order that
permits the victim to record any prohibited communication made to him
or her by the perpetrator.
(b) The Judicial Council shall amend its domestic violence
prevention application and order forms to incorporate the provisions
of this section.

634. Any person who trespasses on property for the purpose of
committing any act, or attempting to commit any act, in violation of
Section 631, 632, 632.5, 632.6, 632.7, or 636 shall be punished by a
fine not exceeding two thousand five hundred dollars ($2,500), by
imprisonment in the county jail not exceeding one year or in the
state prison, or by both that fine and imprisonment. If the person
has previously been convicted of a violation of this section or
Section 631, 632, 632.5, 632.6, 632.7, or 636, the person shall be
punished by a fine not exceeding ten thousand dollars ($10,000), by
imprisonment in the county jail not exceeding one year or in the
state prison, or by both that fine and imprisonment.

 

[GMI]

In scenario #1 the conversation took place outdoors on public property where it is not reasonable for any one person to expect any measure of privacy. In other words it was made in a place where any person can come and go 24/7/365.

In accordance to California law (632(C) Penal code), recording made in public property does not automatically means there are no expectation of privacy. It depends on the circumstances of when the recording took place.

I.E. You would have more reasonable expectation of privacy in a completely empty public park than standing on the sidewalk of a busy street.

 

[LiuKangBakinPie]

The U.S. federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the call. A majority of the states and territories have adopted wiretapping statutes based on the federal law.

12 states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.


It is illegal under all jurisdictions to record calls in which one is not a party

http://www.callcorder.com/phone-rec...Recording Telephone Calls In Different States

 

[CZroe]

I believe that in the presence of a third party known and present by both parties you can record without notice because the third party can be a witness against one of the first two just the same as the recording can and, thus, all parties would be careful what they say.

 

[LiuKangBakinPie]

The business telephone exception permits the business to monitor and record their employees including their private convos