There are various reasons you may want to record a conversation, especially if you are involved in a dispute. However, federal and state laws vary as to the legality of recording a person without their consent. Similarly, different states have different rules about whether a recorded conversation may be admitted into evidence, in the case of a civil litigation or other proceeding. For instance, the rules in states like Florida are much more restrictive than New York and New Jersey.
Generally, in California, you cannot legally record a conversation without the other person’s consent, but that recording may be admissible in criminal cases even if it was unlawfully recorded. The rules are confusing, so it is best to consult an attorney about what to do.
California State Law
Unlike New York and New Jersey, California is a “two-party consent” state. This makes it illegal to record a private conversation unless all parties consent to the recording. A violation of the two-party consent provisions of the California Penal Code is a criminal misdemeanor and may also give rise to a civil lawsuit.
Federal Law and Interstate Recordings
Under federal law, only one party’s consent is required when recording a conversation. Accordingly, you can record your own conversation with another person whether in-person or on the phone. However, there are different rules if the participants in the recorded conversation are located in different states.
Generally, if both parties are within the same state, that state’s law will apply. When one party is in California and the other one is outside the state, California’s two-party consent rule applies to actors outside of California, if they are communicating with people in California who have not given consent. Essentially, California protects individuals inside of California from being recorded without their consent even where the out-of-state actor is in a state which permits “one party consent.”
This is a crucial point for businesses outside of California to understand. If they record conversations with customers in California without obtaining their consent, they may be held liable for damages regardless of whether they operate from a one-party consent state.
Illegal wiretapping is a federal crime punishable by up to five years in prison and a fine of $250,000 for an individual. Violators may also have to pay compensatory and punitive damages and attorney’s fees.
Admissibility of Recorded Conversations in California
If your recorded conversation was not made with all parties’ consent, it will be inadmissible in a California court. However, California has a “Truth in Evidence Law” which allows otherwise illegally made recordings to be admitted into evidence in criminal court proceedings.
Even if your recording was made legally with all parties’ consent, recorded conversations tend to be inadmissible in court as hearsay. Still, California allows an illegally recorded conversation to be admitted as evidence in criminal cases, provided it falls within a hearsay exception. For example, the recording may be allowed as a declaration against interest, an inconsistent or contemporaneous statement, a party admission, or could be used to impeach a witness. This is the same rule as under federal law.
Conclusion
California provides significant protection to individuals from being recorded without their consent. Those who break the law can be subject to both civil and criminal liability. If you are involved in a lawsuit and considering recording a conversation or believe you have been illegally recorded, consult one of our attorneys to understand your legal rights and risks.
Carlianna Dengel is admitted to practice law in New York and California.
Contributions to this blog from Keegan Dyer.
Photo by Onur Binay on Unsplash
