What to Do With Illegally Obtained Recordings in Domestic Violence and
Other Family Law Situations
Over the years I've seen a lot of attempted over-reaches by parties
to family law cases. One is the "domestic violence set-up,"
where one party hopes to obtain certain collateral benefits when permanent
DV orders issue beyond stay-away and no-contact orders.
These chiefly include (a) residence exclusion and kick-out orders; (b) the
Family Code section 3044 presumption that a DV perpetrator is not fit for primary or joint physical
custody absent a specific finding by the court otherwise; and (c) the
rule that a DV victim should not be required to pay spousal support to
their abuser as set forth in
section 4325. All that needs to be convincingly demonstrated to trigger these consequences
is a single act, and the burden of proof is "very slight" and
by a preponderance of the evidence to win.
Fueled by the Internet and Blogs such as this one, the fact that these
potential advantages are available is increasingly well known. While of
course I totally agree with the policy reasons for not tolerating any
form of domestic violence, another kind of abuse is potentially incentivized
in divorce and custody warfare, where exaggeration and self-interest already
dominate the landscape, if people can gain control over the children in
a custody dispute or avoid parting with money in the form of alimony.
I worry about incidents that are taken outside of their contextual circumstances
being used to facilitate one party gaming the other, or the system in
general. Electronically recorded interactions between people, typically
behind closed doors, can be compelling evidence to use to persuade a judge.
But I'd bet most family law attorneys have had the experience of a
client coming into their office with secretly recorded Iphone video who
hoped to use it to score an advantage in their DV or custody proceedings.
Sometimes the person first provoked the other side off camera, and then
recorded only the ensuing reaction. I've seen people who were triggered
into stupid and unfortunate behaviors that may (and also may not) be isolated
events. I've declined to represent clients in DV applications whom
I believed were engaged in engineering a set-up that didn't represent
the full interaction.
Our time-beleaguered family court bench officers diligently strive to do
justice - but they often only consider sound-bytes, particularly if they
feel pressured to move the proceedings along. Recordings can be highly
dramatic evidence as a picture is worth a thousand words, and therefore
admitting them can be potentially prejudicial. It is hard to clear impressions
from one's mind and un-ring a bell where a judge has watched a video
or listened to a 'tape' of the other party screaming like a banshee.
But such evidence can be misleading. We all know this situation: Johnny
slyly pulls Mary's pigtails in the other room, but all the parents
see is Mary's reaction. Johnny says "what she talking 'bout?",
and is entirely composed. If Johnny is the favored child, look out! And
so Mary gets scolded, or worse.
Especially in domestic violence proceedings, which can have huge downstream
consequences, I believe judges should be highly suspicious that the alleged
victim may be attempting to manipulate the court's impressions, particularly
where they are proffering recordings. When viewing such evidence, judges
need to be alert to a possible sub-text that includes motives beyond simply
asking for protection. Viewing video and audio evidence has a high probability
of inflaming perceptions and passions. Judges need to be skeptical, and
if they find the recording was unlawful they should give weight to the
larger story that the defending party may offer in explanation. If the
party who is doing the recording is so mild on tape in proportion to the
other party's apparent behavior, this inversion should be viewed as
a red flag. And, as I like to say, "the key fits the lock."
There is often a dance going on with the couple that is not obvious without
Do we need some legislative changes to guide our judges to scrutinize these
situations more carefully? The law is always playing catch-up; it is never
leading the charge. Digital recordings in family law cases create thorny
problems aren't adequately addressed under the existing civil or criminal
court published opinions, that are interpreting circumstances that can
be quite different. Judges should not be naive. Which doesn't mean
the lawyers are always correct in what they advocate or defend, either.
The Prohibition Making Illegally Recorded Electronic Communications Supposedly
What are your rights and remedies if you contend that this has occurred
to you; that a video or audio recording fails to display the episode that
occurred prior to someone punching "record" on their Iphone
or Android, and/or that you never consented to them doing so?
California Penal Code section 630 states the public policy of California
on this issue as it first existed in 1994, before the era of Iphones,
"The Legislature hereby declares that advances in science and technology
have led to the development of new devices and techniques for the purpose
of eavesdropping upon private communications and that the invasion of
privacy resulting from the continual and increasing use of such devices
and techniques has created a serious threat to the free exercise of personal
liberties and cannot be tolerated in a free and civilized society.
The Legislature by this chapter intends to protect the right of privacy
of the people of this state...."
Penal Code section 632 states in relevant part:
"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...."
Penal Code section 632(d) states "Except as proof in an action or
prosecution for violation of this section, no evidence obtained as a result
of eavesdropping upon or recording a confidential communication in violation
of this section shall be admissible in any judicial, administrative, legislative,
or other proceeding."
If you are a regular reader of this Blog, you know that there has been
an appellate trend in California over the past 5 years to apply statutes
literally. The plain wording of these statutes mean what they say, and
I believe that in today's judicial climate that you have a better
chance of overturning trial court decisions which extend beyond the clear
statement of the legislative rules and pronouncements.
So, clearly, if in fact there is no consent to be recorded, then a recording
is illegal and inadmissible for all purposes, right?
E.g., Frio v. Superior Court (Ierace) (1998) 203 Cal.App.3d 1480, at 1490.
Frio held that even where a party who unlawfully recorded a communication is
prohibited from introducing the recording itself into evidence, nonetheless
a transcript of the unlawfully recorded conversation may be admissible to
impeach their testimony where it contradicts or varies from the contents of the
Frio explained this result was necessary in order to avoid conferring upon
the testifying witness the right to commit perjury, with impunity, if
the recording was to be excluded for all purposes and that witness denied
they did or said what the recording showed they in fact did or said.
Frio involved the issue of whether someone could testify from handwritten notes
made from telephone conversations he taped on his answering machine -
not whether tape recordings themselves could be admitted. The recordings
were made in the early 1980s, back when answering machines first became
widely available. (We just celebrated the 10th year anniversary of the
release of Apple's smart-phone).
For the family law litigant who has been recorded then, this creates a
terrible dilemma. If that person denies what was captured electronically,
the recording - or at least a transcript of what was said, can be admitted
into evidence to show that what was illegally recorded did in fact occur.
Within the DV setting presumably where the recording shows one party struck
the other, the tape can be viewed if they deny they did. Which means they
cannot successfully lie about what the video shows, or it may be introduced
to impeach them. Usually the contents of a recording are way more dramatic
if someone was out of control, then how the events sound if they are describing
what they did from the witness stand.
Hence, the entire purpose of Penal Code section 632 - making it a crime
to record another person without consent in confidential settings - is
subverted unless the party who committed the crime is actually criminally
charged. How many criminal charges do you suspect get brought over PC
section 632 violations arising from family settings?
Existing non-family law cases have noted that the recorded portions of
a transaction, where the full content is not contained on the recording,
may distort the context of what actually occurred.
See Harmon v. San Joaquin Light & Power Corp. (1940) 37 Cal.App.2d 169, 1974;
see also Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1146-1147.
Begging the Question of Consent to Be Recorded in the First Place
The sanction against admissibility created by Penal Code section 630
et seq. doesn't apply if the recording was truly consensual; but who consents
to their bad or reactive behavior being recorded? Consent is a preliminary
factual determination which may require, in the family court context,
LOL, that the family law bench officer first review 'the tape'
to determine whether the other party even appeared to know they were being
taped. We don't have juries in family law cases. If that bench officer
then decides it is obvious that the recording was not consensual, then
they are supposed to just forget whatever they saw or heard, right? Good
luck with that!
Here are a few of the existing rules about when the "exclusionary
rule" involving illegally recorded communications may be invoked
and what needs to be shown:
Penal Code section 632 has been held to apply to the surreptitious recording
of anything by "electronic means".
Frio, supra, at 1489.
All parties must consent to the recording.
Frio, supra, at 1488.
Prohibited communications include not just voice recordings, but video
recordings of conduct,
e.g., People v. Gibbons (1989) 215 Cal.App.3d 1204, 1208-1290.
To violate the PC section 632 rule the communication must be "confidential"
- this means that recordings taken in places where the other party should
have reasonably expected the communication might be overheard or recorded
are not covered.
Wilkins v. NBC, Inc. (1999) 71 Cal.App.4th 1066, 1079.
Whether a communication was reasonably thought to be confidential is objective
to the extent that the complaining party must have a reasonable expectation
of privacy where the recording occurred, i.e., within their own home.
People v. Wyick (1978) 77 Cal.App.3d 903, 909.
Family law attorneys routinely advise their clients, especially where they
fear the client themselves may be accused of DV, to whip out the Iphone
and begin recording the other party and then say the mantra "I am
recording you now; if you continue to [speak or act this way] then you
will be deemed to have consented to this recording." This is a "best
practice" based upon present law though it doesn't constitute
true consent, except to the extent that someone arguably should signify
their objection by shutting up and leaving the area. They also remind
their clients that if recording, it is important that they be as calm
as the other party is wild. What else can one say?
But where that mantra has not been captured electronically and instead
the recording party says "I told him that just before I hit the record
button" then it becomes a trial court determination whether the recorded
party was so informed, and the recording may have to be viewed to make
it. If that actor's conduct is obnoxious or worse, it will be hard
for the judge to find the preliminary fact in that person's favor.
Which invites the liar's contests that family law is so familiar with,
and so ill-equipped to address when assumptions and sentiments in the
non-family setting are generalized to govern those that are.
One method to seek to exclude the recorded material is through a
motion in limine, prior to hearing commencement in order to brief the Court. However, not
seeking to exclude the evidence through such a motion will not preclude
an objection later. It is quite common in family law proceedings that
someone will not have disclosed the existence of a recording in advance
of the trial testimony.
Should there be an exclusionary rule or sanction where intimate partners
secretly record the other in their homes? It would seem so if the exception
(admissibility for impeachment purposes) is not to swallow the rule. Obviously,
the party who is doing the recording will not be prohibited from testifying
about what the other party did merely because they illegally recorded
the exchange. And the other party is free to rebut it and place what occurred
on tape into its full context; however, they are at a serious disadvantage
when what came before the possibly highly inflammatory recorded events
was not itself recorded.
I'd like to leave you with this question: If someone does illegally
record a confidential exchange between the parties without the other's
consent, does that activity not constitute domestic violence under
Family Code section 6320, that justifies mutual or counter-DV orders?
Be on your best behavior out there and be safe!
Author: T.W. ARNOLD