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 the back-story.

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 Inadmissible

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, as follows:

"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?

Wrong! 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 illegal recording. 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