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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
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Experience:  Attorney experienced in all aspects of family law
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my husband is very abusive when we argue. When I repeat to

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my husband is very abusive when we argue. When I repeat to him what he has said and done in the past arguments he denies it and tells me I twisted what he said or am actually making it up!! The only way I have been able to prove that indeed he DID say or do whatever is to secretly record our conversations, and arguments. I have played back the tapings and now he is telling me I am NOT to do that again and that this is illegal. We live in the state of california. I have ABSOLUTELY NO INTENTIONS to play anything for anyone beit therapist, judge, friends or family. This is noones business and I would never degrade him like that. I am seriously grasping to be able to help him hear himself to hopefully open his eyes....He actually talks himself into believing he never said any of these things....If he had to do this to open MY eyes, I would be grateful as I would realize how awful I treated him....he told me he thinks I am trying to "build a case against him". Now, I do know that anything like this would never be admissable in court. I dont know how else to open his eyes....
Hello there:

Thank you for your question. Technically, it is illegal in California to audio record someone without their knowledge in California if they have a reasonable expectation of privacy at the time of recording. That said, law enforcement generally has no interest whatsoever in getting involved with something so trivial. The recording laws are intended to protect people from being victimized; they are not intended to bring the weight of criminal prosecution on a spouse trying to resolve a dispute. There are violent crimes going unsolved, and no sheriff's office in any of California's 58 counties has any interest in wasting their resources investigating something so petty.

Even if law enforcement did, hypothetically, want to prosecute one spouse for secretly recording the other, they have to prove guilt beyond a reasonable doubt. So that raises a simple question--how would they prove beyond a reasonable doubt which spouse made the recording? Who's to say that the husband didn't record himself in the heat of an argument so he could have the wife prosecuted? For that matter, since it only applies to recordings that are made without the recorded party's knowledge and where there is a reasonable expectation of privacy, how would the prosecutor's office prove that the spouse being recorded didn't know that he was being recorded, or that it was recorded in a place where he had a reasonable expectation of privacy? It would be virtually unprosecuteable.

Law enforcement has discretion in what to prosecute. The public interest is not served by taking a fascist-like reading of the law without considering the intent, nor is it served by spending its resources to interfere in trivial spats that all couples have, nor is it served trying to prove a case where there could be reasonable doubt as to a defendant's guilt. I'm not telling you to make the recordings, but I am telling you that law enforcement typically wouldn't care to investigate one bit if you did.
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One final note--ever see little kids set up a lemonade stand on the sidewalk in front of their house? Technically, it is illegal to engage in that sort of commerce without a business license. But who's going to prosecute a bunch of 8 year olds for selling $0.25 lemonade to a half-dozen neighbors? Even if it could be prosecuted, even if it was prosecuted (which would be crazy), the courts would undoubtedly throw out the charges in the interests of justice (they have discretion to do so). It would be a waste of everyone's time and resources, and it would serve no public purpose. Prosecuting a spouse for recording an argument would be very similar. I hope this helps.

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