I was videotaped and recorded without consent. In California it is a two party consent. The problem is it was conducted in a public place but it was a private conversation between 2 parties and the other record was a confidential complaint and was recorded without my knowledge. Can I charged the person with a violation of penal code 631 9r 632 ? can i get a production of the tape from their lawyer who has threatened to use it against me? Is it inadmissible in court?
You are correct that California is a two-party consent state. I will answer your questions in the order that they were presented:
1. You can make a complaint to law enforcment; whether they elect to act on it is an entirely different story. You will almost certainly need physical evidence before they even begin to consider forwarding a criminal complaint to the District Attorney.
2. As for getting the document produced, if you are already involved in Litigation, you can absolutely request that the recordings be produced. I would recommend that you serve the other attorney with a "request for production". If you are not involved in litigation, California provides a civil remedy for an illegal recording that you may wish to pursue. Review California Penal Code Section 637.2, which allows for civil recovery of $5,000+. You could consider suing the recorder civilly, then request production under that suit.
3. The recording is generally not admissible in court. However, it may be used to impeach Testimony if the recorded party makes a statement under oath that is inconsistent with the recorded statement.
I should also bring to your attention that if an attorney has "threatened" to use the recording against you, they may have committed extortion. See California Penal Code Sections 518-527. If you find that the attorney has, I would bring this to his attention and consider contacting the state bar association.
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What defines extortion by a lawyer
What defines extortion by a lawyer? Explain it to me in the most simple way. What are the premises before I could make a complaint?
the legal definitions of extortion are contained in California Penal Code Sections 518 through 527, but in short, extortion is where someone says "give me money or property, or else I'll do something to you." This even includes circumstances where the extortionist would otherwise have the right to "do something" to you.
So, for example, if an attorney says "unless you settle this case for $5,000, I will release to your wife this tape of you talking dirty to your mistress", that would constitute extortion. If the attorney says "don't sue my client, or else we'll release this tape of you talking dirty to your mistress", that would constitute extortion. If an attorney says "this tape gives my client all the evidence that he needs to win her case; I suggest that you consider dropping it", that would not be extortion.
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