The Use of Personal Video Recording in Court and What it Means for You
Thanks to modern technology, people can now record, monitor, and document almost every communication easily. Recording devices like digital recorders and cameras, tape recorders, and wiretaps have been useful in recording both in-person and telephonic conversations for years. The purposes for recording vary from blackmailing, criminal investigations, documenting evidence of a verbal contract, hoping the tape can be useful as evidence in a court of law.
Nevertheless, recording people’s conversations interferes with their rights and privacy expectations. Because of this, California, like other States, has strict laws on eavesdropping to try and safeguard against possible abuse. In many cases, it is illegal to record a conversation or videotape a meeting secretly. In case you get caught unlawfully taping or recording a private interaction, you will be prohibited from presenting the recording as evidence in court proceedings. Additionally, you may face charges of criminal and civil misconduct. However, we have specific exceptions to this law. There are situations where secret recordings can be admissible in a court case.
The Rule on Video Recording Admissibility in California
Each state is governed by its rules that dictate when conversation recordings can be admissible in court. California’s Penal Code 632 provides that, for any video or audio of a secretly recorded private conversation to be admitted as proof in court, it has to comply with the ‘all parties’ or ‘two-party’ consent rule. This rule dictates that each person to the confidential conversation has to have granted permission for the communication to be taped or recorded. If it was only one individual in the intimate conversation that consented and the other individual didn’t know about the recording, then it’s an unlawfully acquired recording. Thus, the recording cannot be used in court. However, this rule has multiple exceptions, as explained below.
Rule Exceptions
The two-party or all-party consent law makes an exception where the conversation between the individuals was not private or confidential. This is the most common exception made in California courts. If facts indicate that the parties (that did not know were being recorded) didn’t have any reason to have a private or confidential conversation, the court may agree that the video recording can be admitted into evidence. Good examples include regional legislative hearings or public speeches.
Another common exception is dependent on PC 633.5. Here, if the party recording the conversation has reason to believe that they will gather proof of kidnapping, bribery, extortion, or any other crime that involves violence against another individual, the video can be admitted into evidence. For example, if a person is trying to extort you, you could record the discussion without the knowledge of that other party and present the recording to the law enforcement as proof of the offense. Later on, the video recording will be admitted into evidence as proof of a commission of a serious crime.
While it was mainly implemented to protect against violation of rights one’s rights to privacy, the statute was also passed to protect customers that venture mass telemarketing. Often, it was claimed that consumers made contracts through telephone conversations and secret recordings made for when the proof will be needed. This practice was abolished, and the law was put in place to affect it further.
Does The Rule Apply to Parents and Minor Children?
California’s exceptions to the consent rule regarding recordings of confidential conversations still have loopholes. Still, some unclear areas and questions need clarification concerning when video and audio recordings can be admitted into evidence in different situations. For instance, one matter that needed clarification was whether or not a parent that records a babysitter’s offensive or abusive engagement with their child can use that recording in court.
The legal concern brought before the jury was whether or not parents can record videos of the interactions between their child and the babysitter on the child’s behalf when they are suspicious of the babysitter committing a crime. Simply put, can a parent use a nanny camera and later admit the video or audio recording as evidence into court? The answer to this question was yes.
The Fifth District Court of Appeal in California agreed to this on the basis that the state’s legislature does not mean to deny a parent the right to consent to a secret taping on their child’s behalf when they suspect the caregiver is abusing the said child. If they decide otherwise, it would have meant that any parent that eavesdropped on their child’s conversations under worrying circumstances was committing an offense.
However, this exception does not come automatically. There are factors the court considers for it to work; that is, the age of the child and their level of maturity. It could be reasonable for parents to act on account of a minor child who cannot consent to audio or video recording. However, when it comes to secretly taping communication with an adolescent child who expects their privacy, the parents may be deemed unreasonable.
A Los Angeles Criminal Lawyer can advise and help specify on what more situations can be exempted from the all-party consent rule and under which situation your case falls if you are looking to admit a personal video recording into evidence. First, consult with your attorney beforehand to ensure that you are not violating the law.
Are Law Enforcement Recordings Admissible in Court?
In California, police officers on duty can legally take videos or record audio of conversations or interactions with citizens. Because public officials tape them, these communications can be in public records. That’s the reason why some celebrities would be exposed for being troublesome, for example, in the case of Mel Gibson, in which he was exposed shouting racist remarks to law enforcement.
What About Recording Encounters with Police Officers?
The videos will be admissible in court. However, the police officer has to be on duty. Also, the recording shouldn’t interfere with their duties or investigations. It would help if you recorded a law enforcement officer when it is possible and safe to assure they do their duties professionally. Do not take advantage of their jurisdiction.
Tactical Issues
Sometimes it disappoints the person that has gathered proof to be informed that the evidence cannot be admitted into the case, and it exposes them to criminal and civil liability. The opposing party will often find the video recording a powerful tool to argue the case.
In most cases, you will find that rather than the recording being used to develop proof to favor your case, you will end up trying to defend yourself against charges of disobeying the law. You may look disreputable and dishonest before the jury when trying to fight to protect your rights. Though, even under very restricted circumstances, an illegally obtained recording could be admissible in court.
While it may not be admitted as affirmative proof in the court case or demonstrate a point, the recording could be utilized to stop witness perjury. For instance, in the Frio v Superior case in 1988, the Court of Appeal affirmed that any witness testifying cannot quote the exclusionary PC 632 provisions as a defense for perjury.
Keep in mind the limitations of using personal video recordings as proof. In People v Crow case in 1994, the court of appeals affirmed that evidence of private conversations acquired through recording or eavesdropping in violation of PC 632 is usually inadmissible in court. However, the evidence could be useful in challenging inconsistent attestation by those trying to eliminate the evidence.
Also, note that if you are seeking to include the illegal recording into evidence, it means you are, with no doubt, confessing to committing an offense before the same court you are trying to convince that your cause was lawful. The court would see it as an ineffective and clumsy ploy.
It would help if you made careful and tactical considerations as to whether an exception to the rule can be used in your case. Talk to a Los Angeles Criminal Lawyer for certainty, so that you don’t find yourself facing criminal charges. In case you are the one facing charges, a lawyer could defend your rights.
The desire to utilize technology to support a person’s case is overwhelming. Those in powerful positions like corporate executives often use this technology on their employees to try and find out what’s happening in the workplace. For instance, one executive director narrated how none of his sales staff knew that he could track every one of their movements through their mobile phones, and he often did track them. He said he could find out, for example, the places they had their lunch and when they did it.
Laws on privacy are powerful in California, and in most cases, it is not worth the risk to involve yourself in inherently illegal tactics. Even if your charges are few and you are most likely to win, the proof that you will develop from the video recording will be contaminated, your reputation will be at risk, and the jury will most likely not hear it, leave alone supporting the approach you used to obtain the recording.
Additionally, you cannot use the recording to threaten the opposing side with disclosure because the very threat will be founded on an unlawful act and may be seen as extortion. Thus, recording videos privately to use them as evidence in court is among those ideas which sound good, but they rarely are.
The Normal Issues
As earlier explained, the two-party consent rule has various loopholes, and specific issues are left for the jury to decide. However, the common concern that still creates confusion involves dialogues that take place on street corners with people passing by, or in bars and restaurants. The question that pops out here is, would a reasonable individual consider that conversation as confidential? Just because a person is in public doesn’t imply there’s no expectation of privacy; there are many private talks that happen in restaurants. Thus, if you are recording the conversation, you risk being criminally charged if you don’t obtain consent in a clear manner.
Additionally, it is not clear what constitutes consent. Vaguely mentioning that you might record or a mere uttering of ‘there is nothing secretive in this conversation’ don’t appear like obtaining consent. The consent has to be unambiguous and clear.
You may get away with criminal charges for violating PC 632 since the burden of proof on the prosecution is very high. They are supposed to prove beyond any reasonable doubt for a unanimous judgment to be made. On the other hand, it is much easier for a civil action to be taken against you since the proof is by a preponderance of the evidence and does not require a unanimous judgment.
There are Better Approaches to This
If you are seeking to develop good proof that can be admissible in court, you can use better tactics. If you are going to have communication with a person that you think will most likely provide admissible evidence, then bring a witness with you. Again, if you are seeking to make a person admit to a crime, the witness can attest in court. Note that technological recording is as prohibited as eavesdropping. Thus, ensure your witness isn’t in hiding.
It is true that the person you are recording may not admit to the crime in the presence of the witness. But frequently, if people are discussing an issue hotly, they find it hard to control themselves and will mention surprising things, mainly if the witness isn’t part of the case. The witness could act like they are just accompanying you to another appointment to show disinterest.
However, the bottom line is, whether or not you can devise alternative methods, it’s not advisable to go against the law to obtain proof that is of extremely restricted value.
If you are facing criminal charges and the prosecution is trying to use secretly recorded videos against you, or if you have a secret video recording you trust will boost your case, talk to a Los Angeles Criminal Lawyer immediately. A lawyer is able to review the proof and the circumstances of the case and determine whether the evidence should be suppressed, or it is worth being admitted.