Can I Use a Secret Recording of My Ex Admitting to Strangling Me as Evidence in California?

Attorney Answer

This is a good question to ask before the recording gets used one way or another, and California has a specific set of rules around recorded calls.

California generally requires everyone's consent to record a call. Under Penal Code section 632, recording a "confidential communication," meaning a conversation where the other person could reasonably expect it is not being recorded, without that person's consent can itself be a crime, separate from whatever the recording captures.

There is a specific exception that may cover a recording like yours. Penal Code section 633.5 says the consent rules do not prohibit one party to a conversation from recording it to gather evidence reasonably believed to relate to certain serious crimes by the other party, including felonies involving violence against the person and domestic violence. The same section says evidence obtained this way is not made inadmissible in a prosecution for those crimes. Because your ex-boyfriend is charged with strangling and assaulting you, this exception is directly relevant, but whether your call qualifies is a technical question the prosecutor or a lawyer should confirm after hearing exactly how and why the recording was made.

The decision to use it as evidence is not really yours to make alone. Since your ex-boyfriend is already facing state criminal charges, the recording is potential evidence in a case the district attorney's office is handling, not a private civil matter. The right move is to give the recording to the detective or prosecutor assigned to the case, if you have not already, and let them evaluate, with their own legal team, whether and how it can be used.

What to do next:

1. Do not post, share, or edit the recording anywhere except to give it to law enforcement or the prosecutor. 2. Keep the original file and any metadata, such as date and time, intact and unaltered. 3. Tell the detective or district attorney's office handling the case about the recording as soon as possible, if you have not already. 4. Ask your own advocate or attorney, since many district attorney's offices have a victim advocate who can help, about how section 633.5 applies to your situation.

This is general legal information, not legal advice. A local California criminal law attorney, or the victim advocate assigned to your ex-boyfriend's case, can review exactly how the recording was made and advise on how it fits into the prosecution.