Using Recordings to Obtain a Domestic Violence Restraining Order

If you have experienced domestic violence in a relationship, you have likely considered how to prove the abuse occurred. You may have also considered making an audio or video recording of your significant other’s abuse to prove how they harmed you. However, the ability to use an audio or video recording that was confidentially recorded is not absolute. If you have a recording of verbal abuse, emotional abuse, physical abuse or any other type of abuse recognized by the California Family Code, consider working with the experienced San Jose Family law attorneys at Mello & Pickering, LLP to help you determine how to present this evidence in court.

California’s Right to Privacy

California is among the most restrictive states when it comes to recording confidential communications. California’s constitution states explicitly that “All people are by and nature free and independent and have inalienable rights. Among these are . . . obtaining safety, happiness and privacy”. Cal Const. art. I, §1 (emphasis added). In the age of modern technology, this principle has guided California’s two-party consent rules regarding confidential communications. Put differently, California, unlike several other states, requires that all parties to a confidential communication consent to the recording for it to be admissible. Cal Penal Code § 630. Confidential communications typically include those communications that happen in a manner where the person you are recording would have a reasonable expectation of privacy and specifically excludes “communications made in a public gathering” or “in any other circumstance in which the parties to the communication may be overheard and recorded.” Cal Penal Code § 630(c). However, even if your abuser claims that he has a right to privacy there are important exceptions to this rule if you made a recording of domestic violence.

Exception to the Right to Privacy in Cases of Domestic Violence

California has a substantial public interest in protecting victims of domestic violence which is encompassed within the exceptions to the two-party consent rules. For example, although an abuser may argue that they did not consent to an audio or video recording, or that it violated their right to privacy, Cal Penal Code § 633.5 states that it is lawful for a victim of crimes such as domestic violence to record the subject making, or acting upon those threats of harm. The term “threats” in this section should be viewed very narrowly and should not include threats of personal property damage. Does your audio or video recording show your significant other threatening to hide assets or threatening to file a motion in court? In most circumstances, this would not be a type of threat that can be permissibly recorded under Cal Penal Code § 633.5.

Another exception to the two-party consent rules may allow victims of domestic violence to record even if the conduct does not rise to the level of criminal activity. For example, if your significant other has been abusing you verbally or emotionally, a recording of that abuse may still nonetheless be admissible under Cal Penal Code § 633.6(b). This section is a carve out exception for those who seek a domestic violence restraining order in family court. Specifically, this section reads, “a victim of domestic violence who is seeking a domestic violence restraining order from a court, and who reasonably believes that a confidential communication made to him or her by the perpetrator may contain evidence germane to that restraining order, may record that communication for the exclusive purpose and use of providing that evidence to the court” Cal Penal Code § 633.6(b).

Before you present any evidence of an audio or video recording to a family court judge, consider speaking with an experienced attorney at Mello & Pickering, LLP. For your consultation, please call (408) 288-7800 or email mpllp@sjfamilylaw.com.