San Diego Local Community News

The Use of Personal Video Recording in Court and What it Means for You
Digital explosion in modern times has changed many aspects of our lives. Cameras are being used more regularly today than ever before. Digital handheld devices, as well as High-Definition CCTV cameras, are being used to record many things that could not have been captured some years back. While this is a good thing since many memories can be collected with ease, the question remains whether or not personal video recording can be admitted in court as evidence. Opinions on this matter diverge. The law is divided on the issue too, with some sections of the law making it illegal to record personal conversations while others allowing video recordings that have been taken lawfully to be used as proof in court procedures.
California Recording Law and Its Implications
California has very stringent Recording and Eavesdropping laws. In most cases, videotaping or recording a personal conversation secretly, even in a meeting, is illegal. If a person is found recording a confidential interaction illegally, they will not only be prohibited from using that personal recording as evidence in a court proceeding but also face criminal charges. There are exceptions to this law though, where some video recordings could be allowed in a court during a criminal case proceeding.
The state of California has a two-party agreement law on wiretapping. This means that even if it is illegal for a person to record a private conversation of another person or a group, the directive might allow it if the person has the approval of all the parties involved in that conversation. This is according to Section 632 of the California Penal Code. This law applies to all confidential conversations, which are defined as communications whereby one of those involved has objectively reasonable expectations that no person can overhear or is eavesdropping on the dialogue.
Therefore, if you are recording a conversation without the knowledge of all the parties involved, in an open area like a restaurant or the streets, and the people whose conversation you are recording have no rational expectation that their communication is being recorded, you are committing a serious crime. Remember that this violation could subject you to legal prosecution. You could also face civil litigation, in which you will be required to pay monetary compensation for any damages you might have caused the affected parties.
When can a person use a video recording as evidence in a California court?
There are specific requirements that should be met before a person is allowed to use a personal video recording in court. You, for instance, need the advanced permission of a judge if you want to use a discreet personal recording device to gather evidence or for taking notes. If the kind of recording you need is in the form of photographs, or you want to broadcast a court process, you are required to file request forms with the court in advance. Note that California courts have total discretion to either give or deny those types of appeals based on the rules of that particular court.
If therefore you are facing a criminal charge, and the prosecutor is trying to use a secret recording against you, or you want to use a video or audio recording to help your case, an experienced Long Beach Criminal Lawyer can help view that recording to establish whether or not it is admissible in court.
What Can Digital Evidence Do?
People are using smart devices more than they did in the past. Everything is put on record. What this means is that you can easily find evidence against or for a case you are facing through such recordings. If allowed, digital proofs can do a lot to change the outcome of a trial. A single piece of evidence can be used to show guilt or to prove a person’s innocence. If a crime was openly committed, and someone was recording it, the prosecutor may obtain something from such a recording to make the final decision about the case. The problem is that such recordings can easily be manipulated to portray a different picture of how things happened. Do not forget that there are skimmers and hackers today who can easily and quickly change any digital material, whether directly or remotely. This factor makes this type of evidence unreliable.
Exceptions to California Eavesdropping Law
As mentioned above, Section 632 of the California Penal Code has exceptions that allow some personal video recordings to be used as evidence in court. The main exception is if the conversation in question was not private or confidential. A smart attorney may convince the court that the participants in that conversation did not have any reasonable hope for privacy, even if they were unaware of the recording. If the circumstances explained by the attorney prove that the chat was not private, the court may permit the recording to be used as evidence. An example of such a conversation whose recording can be admitted in a court is a public speech.
The other exception is provided in Section 633.5 of the California Penal Code. If the person taking the video of a personal conversation had a strong belief that they were recording something illegal, say bribery, extortion, kidnapping, or evidence to a felony offense that could involve violence against a person, the court may have no choice but to admit that recording as evidence. If therefore, someone was trying to obtain money from you illegally in the form of a bribe or extortion, and you recorded their conversation, you could use that recording to accuse them even if the recording was done without their consent.
This Law has Loopholes
The California Eavesdropping and Private Recording Law has loopholes. The law allows the recording of a conversation between two parties who have no reasonable expectation of privacy. What about people conversing in street corners, or communication between two people who are just passing by? These are people who did not reasonably expect that their discussion will be private; the same as people who are conversing in a restaurant or bar. However, the judge may rule that in general, people expect that all their conversations are private, even if they are in a public place. In that case, a person recording such a discussion may find themselves in great trouble if they have not obtained consent from all the parties.
The other issue is with telephone conversations. All conversations made on the phone are considered private, and most people have a reasonable expectation that their privacy will be respected in such discussions. In that case, the court may not use any evidence obtained through tapped telephone lines unless it qualifies as an exception as above.
Another major problem is that personal video recordings and other types of digital evidence can fall into the wrong hands so quickly and get manipulated. In that case, the evidence may not help in the case it was supposed to, and the person who took the recording could face charges for illegal recordings in the end. Since there is no typical way of treating such evidence, proof could be destroyed, tampered with, or rendered ineffective.
Data ownership might also be a problem in a case where the prosecutor is willing to use personal data from an accused person’s mobile phone or other mobile devices. Digital devices and accounts are subject to hacking, and so, there is no way to tell if the evidence gathered in such devices is real and can be used as evidence. The prosecutor may try to connect the owner of that device with the data obtained from the device, but this may not work in some cases.
What Needs To Be Done
Personal video recording is being used more frequently throughout the country. There are surveillance cameras in almost all buildings in Long Beach. People are using their handheld devices every day to record issues that are happening around them. What must be done for such recordings to be acceptable in court?
There is a need for police investigators, who are well-informed about the law and how such evidence should be collected. A certified police investigator can easily convince the court that the recorded evidence is authentic, how and where it was recorded, and who is responsible for the equipment that was used in the recording. The investigator will also demonstrate to the court how the obtained recording is related to the situation at hand and why it should be admitted.
When digital evidence is appropriately collected, preserved, and then authenticated, there is no doubt it will be admitted in court and help with the criminal case for which it was recorded. The admissibility of video recording is also dependent on the presiding judge and the nature of the criminal case being tried. The rights of the persons concerned will also be considered.
If you are facing a criminal charge and you would like to know if a piece of digital evidence can help or destroy your case, speak to a Long Beach Criminal Lawyer.

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