Eavesdropping and Audio Recordings –
Penal Code section 632’s Exclusionary Rule in Family Law Proceedings
Likely most of us have called into our cable provider or other like business communication interface and then to hear those magic words: “this call may be recorded for quality assurance purposes.” We've left voice-messages for others. We've texed each other, sometimes, ..., 'ugently.'
Most of us have made videos of family and friends doing fun life activities. These are normal, everyday occurrences, made easily accessible and available by modern digital technology. What is the family law "blow-back" when the shit hits the fan?
I have encountered fact patterns in my recent cases involving recorded statements and speaker-phone third-party witnesses that have caused me to prepare (and win) suppression motions. Most peoles's ever-increasing use of technology on a moment-to-moment basis (yes, we are becoming addicted to our cellular phones and these other devices) may make us more or less connected to each other, depending on one’s perspective,, but yet unaware of our legal rights.
Technology continues to spill over more into Family Law matters with the result often being more ‘truthful’ information, but arguably at the cost of privacy (also for better or worse, depending on perspective). In light of this practitioners and litigants should be aware of important authorities concerning some limits (and potential negative consequences) of eavesdropping with electronic devices and audio recordings. This article addresses these issues, and is my perspective.
In 1988 and then again in 2016 the California Legislature re-wrote some very old law (going back to 1872) concerning public policy limitations in litigation proceedings to help protect the privacy of this State’s citizens. In particular, the Legislature modernized the wiretapping statute (Penal Code section 631) and the eavesdropping and audio-recording statute (Penal Code section 632).
In Family Law matters, technology still hasn’t quite progressed to make wiretapping a widespread or common issue, so this article does not address other than the reference, above. On the other hand, small and easily-concealable ‘smart’ phones give most everyone the ability to secretly video and audio-record anyone in their vicinity, and the ability to place an unwitting and unknowing person on the other end of the line on speaker phone such that third-parties to the phone call can hear what the person on the other end of the line is saying (and, potentially, these third-parties may be called upon act as witnesses against that person on the other end of the line).
Penal Code section 632 makes certain forms of evidence inadmissible in any proceeding (including Civil Law cases, and thereby Family Law cases) where the evidence was obtained in violation of the stature. Not only is such evidence inadmissible, the author(s) and co-conspirator(s) in the gathering such evidence can be charged with a misdemeanor crime under the statute. So, the stakes can be high. Under Penal Code section 637.2, there is also a civil tort for damages against a violator of the statute held by the victim whose privacy was illegally incurred-upon.
The elements of Penal Code section 632(a) are as follows:
- A person intentionally
- Uses an electronic amplifying or recording device
- To listen to or record
- A confidential communication via a device such as a telephone
- Without either the knowledge or concerns of a party to the communication
Penal Code section 632(b) goes on to include agents, business entities, and other legal entities within the definition of the “person” element. Penal Code section 632(c) goes on to broadly define “confidential communication” as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto” but excluding statements made in public gatherings, during government proceedings, and “in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
Some case law has emerged concerning the interpretation and scope of these elements, inclusions, and exclusions. But the case law is thin and is still fleshing out through our trial and appellate courts in California and on the federal level. To date we have reported decisions focusing on debt collection practices (see Kuschner v. Nationwide Credit, Inc., E.D.Cal.2009, 256 F.R.D. 684), persons in the custody of law enforcement (see People v. Chandler (App. 1 Dist. 1968) 68 Cal.Rptr. 645, 262 Cal.App.2d 350), and in criminal proceedings for recordings not excepted by the statute (i.e. lawfully by law enforcement; People v. Guzman (2017) 11 Cal.App.5th 184, Cal.Rptr.3d 509 – holding that Penal Code section 632’s exclusionary rule for evidence obtained as a result of recording a confidential communication without the consent of all parties was superseded to the extent it is invoked to suppress relevant evidence in a criminal proceeding under the ‘Right to Truth–in–Evidence,’ Cal. Const. Art. 1 section 28 of the California Constitution, and therefore was unconstitutional as-applied in that case).
Application in Family Law Proceedings:
One of the recent cases I encountered with implications under Penal Code section 632 involved a mother, while east of the Mississippi River, who allegedly made a suicidal threat and threat to harm her child while on the telephone with the father who was in California. Apparently, the father had put this call on speaker phone and either he himself or one of his family members audio-recorded the conversation. Subsequently, the mother moved to California and lived with the father for nearly two years without further incident.
The recording was the center-piece of the father’s case for primarily physical custody when the parties broke up and the mother sought an order to return to her home state with the child, and a restraining order against the father. During my meet and confer conversation with the father’s attorney, the day prior to the hearing, I learned of the audio recording. I immediately prepared a Motion in Limine to suppress the audio recording primarily on the grounds that it violated Penal Code section 632 (as well as objection to relevancy undue prejudice as the recorded statements allegedly occurred two years ago). Not only was the entirety of the recording suppressed, the Court stated to the litigants that it was a crime to have recorded the mother without her knowledge or consent (there was no ‘this call may be recorded’ warning given to the mother at the beginning of the recording).
The Court was correct both as to the recording itself, as well as the father placing the mother on speaker phone so that the father’s family member could record the statements on another device. Each of these acts, individually, were violations of Penal Code section 632, and both the father and the family member were co-conspirators with the other for each act. The evidence suppressed, the mother received her desired relocation back to her home state with the child, and she was very pleased.
Another recent case I encountered involved defending the father for statements he allegedly made threats of some vague harm to the mother during a telephone conversation. Mother sought a restraining order, the sole basis of which was this telephone conversation. The mother’s pleadings referenced that her aunt and uncle were present during the conversation, and implied they would be called to testify as to what the father had said (likely under an ‘admission-by-party-opponent’ exception to the hearsay exclusionary rule).
Of course, the only way the aunt and uncle could have known about the father’s statements was if he were on speaker phone or they were otherwise eavesdropping on the call (maybe the mother had her phone’s headset turned up so loudly that they could hear the father without the use of a loud speaker, and instead heard him over the tiny speaker in the phone). If the aunt and uncle simply overheard the conversation via the tiny speaker, there is an argument that the mother did not intentionally have them listen such that 632’s exclusionary rule did not apply. But otherwise, an electronic device was being used to amplify the father’s communication to the mother, it was not in a setting that would reasonably indicate to the father that his call was being eavesdropped, and the father did not actually know or consent to the aunt’s and uncles eavesdropping. As a result, the aunt’s and uncle’s testimony as to what the father said will likely be suppressed.
The more interesting question is whether the mother’s testimony as to what the father said will be suppressed as well, and as a result the mother’s restraining order case against the father will necessarily need to be dismissed because this telephone conversation was the sole basis of the mother’s allegations of abuse and there is no one remaining who can testify to the father’s words. I think there is a very good argument, supported by the language of Penal Code section 632, that the mother’s testimony also needs to be suppressed if she intended to put the father on speaker and have her aunt and uncle listen in. She is the person who authored this improper use of her electronic device, and Penal Code section 632(d) expressly states: “… evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.”
Suppressing all such evidence in a Family Law restraining order context does not seem to offend the ‘Right to Truth–in–Evidence’ provisions of Cal. Const. Art. 1 section 28 of the California Constitution and the holding of People v. Guzman because this context is not criminal in nature, and section 28 expressly deals with criminal acts. On the other hand, non-criminal contexts where abuse arises such as in Family Law proceedings have, at least, a criminal feel to them for proponents of the anti-abuse momentum present in our culture and law. But as a counter-argument to the anti-abuse momentum, Family Law restraining order proceedings have much less protections for the accused and are somewhat summary in nature because of the limited time periods for restraining order litigation to take place in, and the much lower standard of proof (preponderance) compared to the standard of proof for criminal proceedings (beyond a reasonable doubt). As such, I anticipate all of the mother’s evidence in the case where the aunt and uncle listened in to the phone call, including the mother’s own testimony as to what the father allegedly said, should correctly be suppressed under the plain meaning of Penal Code section 632(d)’s unqualified provision that evidence (meaning all evidence in in my reading of the statute) obtained in violation of its other provisions are inadmissible.
By: Michael C. Peterson, CFLS