New Case Law Stuff - Secret Recordings

[RickD427]

We've had several threads over the past few years concerning the legality of making secret recordings, and the ability to bring such recordings into court as evidence.

These threads quickly led to discussion of Penal Code section 632 which makes it illegal to secretly record "Confidential Communications" as defined in the code.

In several of those threads, I also pointed out the following provision of section 632 which prohibited the use of such recordings in "any" court proceeding:

"(d) Except as proof in an action or prosecution for violation of this section, 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."

Yesterday, the California State Supreme Court handed down its decision in People v Guzman which invalidated this provision where the secret recording is evidence in a criminal case. The court noted that the restriction violated the California Constitution's "Truth in Evidence" provisions.

It looks like there are two key "Fall-outs" from this ruling:

1) There were several provisions that permitted LEOs to make secret recording under PC 632. This case seems to broaden their ability to do so in any criminal case.

2) Although Guzman addressed the ability of the prosecution to introduce secret recordings in evidence against Mr. Guzman, there is nothing in the decision that would prevent a defendant from introducing secret recording evidence in their defense.

Keep in mind that Guzman was decided on the basis of the "Truth in Evidence" Proposition Eight and only applies to criminal cases. The prohibition on secret recording evidence still applies to civil cases and administrative law hearings.

[HUTCH 7.62]

Uggh.

[Dirtlaw]

We've had several threads over the past few years concerning the legality of making secret recordings, and the ability to bring such recordings into court as evidence.

These threads quickly led to discussion of Penal Code section 632 which makes it illegal to secretly record "Confidential Communications" as defined in the code.

In several of those threads, I also pointed out the following provision of section 632 which prohibited the use of such recordings in "any" court proceeding:

"(d) Except as proof in an action or prosecution for violation of this section, 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."

Yesterday, the California State Supreme Court handed down its decision in People v Guzman which invalidated this provision where the secret recording is evidence in a criminal case. The court noted that the restriction violated the California Constitution's "Truth in Evidence" provisions.

It looks like there are two key "Fall-outs" from this ruling:

1) There were several provisions that permitted LEOs to make secret recording under PC 632. This case seems to broaden their ability to do so in any criminal case.

2) Although Guzman addressed the ability of the prosecution to introduce secret recordings in evidence against Mr. Guzman, there is nothing in the decision that would prevent a defendant from introducing secret recording evidence in their defense.

Keep in mind that Guzman was decided on the basis of the "Truth in Evidence" Proposition Eight and only applies to criminal cases. The prohibition on secret recording evidence still applies to civil cases and administrative law hearings.

I left criminal law many decades ago. But I appreciate your post. A move in one area of law can signal a similar move in another area. Great reporting.

[Chewy65]

I know nothing about crim law, but I glanced at the decision and see that Prop 8 was from 1982. I suspect it was a reaction to the Rose Bird court.

Has the same rationale been applied to the exclusion of evidence under Evidence Code 352. For those unfamiliar with 352, it permits relevant evidence to be excluded if its relevance is excluded by its prejudicial impact. For example, evidence of commission of one rape would not be admitted in a trial concerning a rape of a different person, because it would be highly prejudicial as compared to the weight of any relevance. However, evidence of the commission of several other rapes might be admissible, because the tendency to establish the accused's proclivity to rape is greater where there are several prior instances.

[RickD427]

I know nothing about crim law, but I glanced at the decision and see that Prop 8 was from 1982. I suspect it was a reaction to the Rose Bird court.

Has the same rationale been applied to the exclusion of evidence under Evidence Code 352. For those unfamiliar with 352, it permits relevant evidence to be excluded if its relevance is excluded by its prejudicial impact. For example, evidence of commission of one rape would not be admitted in a trial concerning a rape of a different person, because it would be highly prejudicial as compared to the weight of any relevance. However, evidence of the commission of several other rapes might be admissible, because the tendency to establish the accused's proclivity to rape is greater where there are several prior instances.

Chewy,

You're right, Prop 8 was a very definite reaction to the Rose Bird court. I doubt that you would see such an initiative pass today.

I'm not so sure that it could be used to invalidate EV 352. The idea of Prop 8 was that it did away with the "Independent State Grounds" for restrictions on the admissibility of evidence and made federal standards the sole source of limitation.

The issue with EV 352 is that there are Fourth Amendment "Due Process" concerns with the admission of prejudicial evidence. That may put it beyond the scope of Prop 8.

[abinsinia]

So making the recordings is illegal, but using those illegal recordings as evidence is not illegal ?

[Chewy65]

So making the recordings is illegal, but using those illegal recordings as evidence is not illegal ?

Good thinking. Arguably, there are other ways of deterring the illegal recording without denying truth. Just how that works out in practice may be questionable. If you are going to sue the person who illegally recorded you, what are your damages? I can here it now.

Members of the jury. Because of the defendant's illegal recording of my client threatening to blow their heads off if she didn't let him molest her eight year old, he served 6 years in prison. It is only just that you award him a minimum of actual damages of $100,000 for each of those years for a total of $600,000. Further, plaintiff is entitled to no less than $6.000,000 in punitive and exemplary damages on account of defendant's criminal transgression of the Penal Code.

Unfortunately, and especially if the defendant is a target such as a LEO, in our topsy turvy world too many juries won't hesitate to buy crap like that.

[splithoof]

For practical understanding of what this may mean to the citizenry, does this change anything about secretly recording contact with LE on something like a traffic stop or field interview?

[RickD427]

So making the recordings is illegal, but using those illegal recordings as evidence is not illegal ?

That's a pretty good summary..............

[RickD427]

For practical understanding of what this may mean to the citizenry, does this change anything about secretly recording contact with LE on something like a traffic stop or field interview?

As a practical matter, I don't see where it changes anything under the conditions that you described.

Keep in mind that PC 632 only applies to "Confidential Communications." There's a lot of case law out there that LEOs do not have personal right to privacy in the public performance of their duties. That alone puts routine contacts outside the scope of PC 632.

[abinsinia]

Is it plausible that if you used a secret recording as evidence, you would likely be arrested to cited for making the recording in the first place?

[RickD427]

Is it plausible that if you used a secret recording as evidence, you would likely be arrested to cited for making the recording in the first place?

That's a distinct possibility. It's also quite possible that the victim of the recording will take you to small claims court for $5,000. Penal Code section 637.2 allows them to recover that amount without having to prove any actual damages. That section also allows them to sue you for three times any actual damages.

[TKM]

Is it plausible that if you used a secret recording as evidence, you would likely be arrested to cited for making the recording in the first place?

Making the recording is different from somehow finding the recording....

[Chewy65]

If you used it as evidence it won't be necessary to find it, should it disappear, to bring a case under 362. All you need is the records of the case in which it was previously offered as evidence to make a case for unlawful recording.

[????? ????]

Has the same rationale been applied to the exclusion of evidence under Evidence Code 352.

EC352 trumps Prop 8

Article I, section 28, subdivision (f), paragraph (2) of the California Constitution:

(2) Right to Truth-in-Evidence.Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103.