Q: Hi, am I legally allowed to record a conversation without the other party's consent if I am trying to prove child abuse?

A: No, not without the other person’s knowledge.

A: Generally, in California, you cannot legally record a conversation without the other person’s consent, but such evidence 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.

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 this law is a criminal misdemeanor.

Typically, recorded conversations are inadmissible in court as hearsay. However, 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 used to impeach a witness. This is the same rule as under federal law.

A: California is a two party consent state where there is a reasonable expectation of privacy. Whether someone has a reasonable expectation of privacy may depend on where the conversation occurs and/or whether other persons can overhear the discussion. For example, if the other party knows that you are on a speaker phone, maybe that party should not have a reasonable expectation of privacy in his communications.

It would be better for law enforcement to pursue investigations like this. Trying to avoid criminal prosecution for illegal recording is full of risks.

A: It's not clear as to whether Penal Code section 633.5 would apply. Provide additional information to a local attorney. [I litigate cases. Anything posted here must not be construed as legal advice, nor as grounds for forming an attorney-client relationship. You should seek an attorney for formal legal advice and representation.]

A: In California, it is generally considered a two-party consent state when it comes to recording conversations. This means that all parties involved in a conversation must consent to the recording. It would be advisable to consult with a qualified attorney who specializes in California law to ensure that your actions align with the applicable legal requirements and to understand the potential consequences or limitations associated with recording conversations for the purpose of proving child abuse.