It used to be occasional and now is common, probably due to the increase in easy to use technology, often in the “smart phones.” More people and businesses utilize technology to secretly record statements and comments of potential adversaries or witnesses, knowing that if the story given by the person alters, they can be impeached with such unassailable evidence.
There is only one problem. Such evidence is not only normally not admissible in any court of law, but is quite often illegal to obtain. There are limited circ*mstances in some jurisdictions in which such evidence may be utilized and this article discusses the basic law applicable to the secret recording of such conversations.
The reader should review our articles on American Litigation and Hard Drive Discovery before reading further.
Basic Law:
California has some of the strongest laws in the country on wiretapping. Put simply, absent consent of all parties, they are not only not admissible into evidence, but a crime to obtain and allow the “injured party” to sue. Admittedly, damages are hard to prove in these cases. Recognizing this, the statutes provide for a multiplier of damages should the civil case be proven. Further, given the cost of litigation and the fact that the act is a crime, the exposure can be significant.
While obviously enacted to protect privacy rights, the statutes were also enacted to protect consumers in a world of mass telemarketing. Contracts were often claimed to have been made by customers in telephone calls and “proven” by secret recordings. That type of practice was eliminated but the law went much further in its effects.
California Law Penal Code § 632, enacted under the California Invasion of Privacy Act, makes it illegal for an individual to monitor or record a "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. California is known as a "two-party" state, which means that recordings are not allowed unless all parties to the conversation consent to the recording.
Under Penal Code § 632(c), "confidential communication" includes any communication carried on in circ*mstances as may reasonably indicate that any party to the communication desires it to be confined to the parties, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circ*mstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
A violation of Penal Code § 632 can lead to a fine of up to $2,500 and/or imprisonment for up to a year (misdemeanor). In addition, the violator may be subject to civil liability in the amount of $5,000 or three times the amount of any actual damages sustained as a result.
Under the California Public Utilities Commission General Order 107-B(II)(A)(5), a recording is allowed if there is a "beep tone" warning. This requires an automatic beep that occurs in the conversation during the entire recording-in effect, demonstrating both consent and notice to all parties.
Under California Penal Code § 633, state law enforcement officials may eavesdrop and record telephone conversations though search warrants are normally required.
The Usual Issues:
The above law has obvious loopholes. If the parties did not reasonably expect privacy, such recordings are perfectly legal. The question of such reasonable expectations is for the Trier of Fact to determine and the typical “gray” case involves conversations on street corners with people passing by or in restaurants or bars. The criteria is simple: would an average person consider the contents of the conversation as private. Simply because one is in a public place does not mean there is no expectation of privacy…many private conversations occur over a restaurant table. The person taking the recording thus risks a great deal if consent is not clearly and audibly obtained.
Conversations on the telephone are almost always considered “private” conversations with reasonable expectations of privacy. With party line telephones no longer typical, the courts almost always hold that a telephone conversation is inherently a private conversation.
Equally central is the issue of consent. Vague references to possible recording or mentioning that “nothing is really secret” do not act as obtaining consent to record a telephone call. The consent should be clear and unambiguous and, if given, the “beep” noise is not required.
That said, criminal prosecution is rare. As discussed in our article Criminal Law, the burden of proof on a district attorney is extremely high, namely proof beyond a reasonable doubt to a moral certainty, requiring a unanimous verdict. Civil action, in which proof is by a preponderance of the evidence and not requiring a unanimous verdict, is far easier to bring and forms the bulk of actions that are filed predicated on this activity. Given the statutory damages that lie, civil litigants are given incentive to seek relief.
Tactical Problems:
It is almost always a disappointment to the person obtaining the evidence to be told that it not only cannot be used in the case, but exposes him or her to civil and criminal liability. It is, indeed, often an effective tool that can be used in the hands of the opposing party. One finds that instead of the issue contested whose recording was to develop evidence in your favor, you end up fighting to protect yourself against a charge of violating the law. Before a Trier of fact, you may appear both dishonest and disreputable. Remember, ignorance of the law is no excuse.
Under restricted circ*mstances, even an illegal recording can be used in a court of law. While it could not be used to present affirmative evidence in the case or to prove a point, it can be used to prevent perjury of a witness. In Frio v Superior Court (1988) 203 Cal.App.3e 1480, the Court of Appeal held that any testifying witness cannot use the exclusionary provisions of Penal Code Section 632 as a shield for perjury. Note the limits on use of that evidence. In People v Crow (1994), the court stated, "Evidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding...but can be used to impeach inconsistent testimony by those seeking to exclude the evidence.."
It should also be noted that the party seeking to use that illegal evidence is implicitly admitting committing a crime before the very court they are seeking to convince of the rightness of their cause. A clumsy and ineffective ploy at best. Careful tactical consideration must be made as to whether that exception to the rule of exclusion should be utilized. (Thanks to one of our readers in pointing out this unique exception to the exclusionary rule.)
The urge to use technology to bolster one’s case is overwhelming, And those in a position of authority, such as corporate executives, find the technology they can bring to bar on employees a tempting method to find out “what is happening” on the job. One woman executive once exulted to the writer that none of her sales staff realized that she could track their every movement by means of the cell phones they were utilizing…and regularly did. “I can find out where and when they eat lunch and if they are pounding the street as they should.”
Hobbes wrote that knowledge is power and power is attractive. But privacy laws are powerful, as well, and it is seldom worth the risk to engage in tactics that are, essentially illegal. Even if prosecutions are few and far between, the evidence developed is tainted, your reputation put at risk, and the Judge and jury unlikely to ever hear it, much less support that approach. One cannot use it to threaten the other side with exposure since that very threat is predicated on an illegal act and could be considered extortion.
One of those ideas that sounds good but seldom is.
Conclusion:
There are better ways to seek to develop good evidence. If one is going to have a conversation in which one thinks admissions are likely, simply bring a witness along. If one is seeking to have a person admit or commit to a position, that witness can testify in court. (Eavesdropping has the same restrictions as a technological recording, so make sure the witness is not in hiding.) That same witness can be listening in on an extension if it is made clear that others are on the line, or in the room when the speaker phone is on. True, the admission may not be made with that witness there, but often people, hotly discussing a topic, find such control hard to maintain and will state surprising things…especially if the witness is not involved in the case and just happens to be accompanying the party on the way to some other appointment.
But whether you can develop an alternative method or not, it is not recommended to violate the law to develop evidence of extremely limited value.
