Legal Question in Criminal Law in California

Re: Recording Without Consent

Penal Code section 633.5 permits such recordings only "for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or [making harassing phone calls]." Using false evidence to obtain a restraining order, to gain child custody or to press criminal charges is not on the list, so the exception does not apply.

However, if Person A also offered not to use the evidence in exchange for money or property from Person B, that would be an act of extortion. If A had extorted B before the recordings were made or, MAYBE, if B reasonably expected A to extort him when he made the recordings, then they might be admissible on that basis.

Person B is on very thin ice here. He should consult with a lawyer before trying to use the recording. He is welcome to contact me (Lawyer H) directly if he wants.

Re: Recording Without Consent

Hypothetically, of course...

You want to look at Penal Code section 632.7 - "Every person who, without consent of all parties to a communication, intercepts or receives and intentionally records . . . a communication... shall be punished by a fine not exceeding $2,500 or by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison."

There is an exception in Penal Code section 633.5 - "Nothing...prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery or any felony involving violence against the person."

It sounds like you're facing criminal charges as well as a family court case. Anything you say to your attorney is confidential. Discuss this more fully with them before you admit to anyone what you've done.

Good luck.

Re: Recording Without Consent

Do not take any advice from this site or elsewhere other than 'say nothing' about the recording except to your retained attorney, and then listen to his advice. Whether you can assert an exception to the criminal code and use the recording depends on all the facts. If this is in SoCal courts, and you're serious about getting counsel to defend you on the RO and criminal charges, feel free to contact me.

Re: Recording Without Consent

Theoretically, you could possible use the recording at trial against you as a kamikaze last resort move. You would have criminal exposure most likely but the judge would not necessarily rule it inadmissible in the trial against you.

You should consult regarding your case only in a confidential consultation with an attorney. Feel free to contact my office.

Jacek W. Lentz, Esq.

310.273.1361

www.lentzlawfirm.com

Re: Recording Without Consent

One additional factor to consider. It appears that you had a telephone conversation with the protected party. That is a violation of the restraining order, even though the protected party made the telephone call.