Legal Question in Constitutional Law in California

Re: Audio tape recording

Whether you can record a conversation without the other party's knowledge or consent depends on:

-- What purpose?

-- What kind of recording [phone tap on your phone, phone tap on someone else's phone, in-person ("wearing a wire"), planted bugging device]

-- How you plan to use the recording -- does it need to be admissible in court?

-- Are just one, or both parties, located in California?

-- Are you a law enforcement officer?

It's a complicated area of law, and if you get it wrong you could be arrested, sued, and/or not be able to use the tape as desired.

The most common question occurs when someone is trying to tape a phone call in which the person doing the recording is a participant in the conversation. As to this specific type of recording, California is a "two party consent" state which means if both parties are in California both must consent. Some other states are "one party consent" states meaning that someone located in such a state may record the call surreptitiously even if the other party is in California. Worse yet, there are Federal laws (e.g. the Electronic Communications Privacy Act, and others) that apply to interstate telephone conversations.

Very probably the recording you make (assuming it is audible) is inadmissible in a California court, regardless of the circumstances, unless you manage to catch the other person saying something really outrageous like threatening to do you violence, and even then you may have a legally admissible-as-evidence recording which results in your being arrested because you obtained it illegally.

The next most common question is does a police officer or police informant need a warrant to wear a hidden microphone (not a telephone tap) and get you to confess to something on tape. Answer, that's perfectly OK.