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If you are being charged with a crime and someone has recorded a phone call or a conversation with you the law in that type of case can be very complicated.  As an Attorney with more than 13 years of experience, and someone that has dealt with this type of police action on many occassions, the short answer is yes the person can record if they are acting in conjunction with the police when they recorded.

 

AS A GENERAL RULE PEOPLE ARE NOT ALLOWED TO TAPE PHONE CALLS OR CONVERSATIONS WITH PEOPLE WITHOUT PERSONS PERMISSION. 

 

However, there are many exceptions to this general rule that I will go over below.

 

PRETEXT PHONE CALL

A pretext phone call is a tactic often used by Law Enforcement.  The person will call you with a phone or recording equipment provided by Law Enforcement.  For example in sexual assault cases.  Police will often give equipment to the alleged victim when they do not have much evidence or want to bolster there case.  

The alleged victim may call the person that allegedly sexually assualted them under the pretext of wanting to know why the incident happened.  Any and all statements made by the alleged defendant can and will be used against him.

The reason for this is that if the person is acting at the behest or direction of law enforcement than the general rule does not apply.

WHAT IF THE ALLEGED VICTIM WORE A WIRE DURING THE CONVERSATION?

The result will be the same.  In fact we had a case where a person wore a wire while meeting with our client.  Our client made admissions to the effect that he was sorry and other specifics implicating him in the offense.  We filed a motion to have the conversations not allowed as a violation of our clients Fourth Amendment rights.  The Motion was denied. 

Usually these type of conversations must be done at the investigation stage, of the process.  In other words before initialization of criminal proceedings.  If these are done later they could be suppressed during a motion to suppress hearing. 

Usually the police will do this before they make arrest, or file charges.  Once charges are filed and a person has a right to an Attorney the communications are more likely to be kept out of court. 

However, Jail call and letters and other communications initiated by the defendant are not part of this process.  In other words your words made during a Jail phone call as discussed below can and will be used against you.  

 

AS A GENERAL RULE WHEN THE PERSON IS ACTING WITH LAW ENFORCEMENT THEY CAN RECORD CONVERSATION THAT THEY WOULD GENERALLY NOT BE ABLE TO RECORD

 

WHAT ABOUT JAIL CALLS?

Courts have held almost unanimously that there is no expectation of privacy in communications from a Corrections facility.  In fact, if you use the phones usually there will be a warning that all calls are recorded.  I don't even like talking specifically about cases with clients from Jail.  The reason is I believe that all calls from Jail are recorded.  Even though calls to an Attorney are recorded.  This is not a certainty but why take a chance on confidential communication being overheard by the wrong person?

WHAT HAPPENS IF I MADE ADMISSIONS ON TAPE OR RECORDING?

Again, as a general rule those communication will be admitted to prove your guilt.  

DOES THAT MEAN I AM DOOMED TO BE CONVICTED?

NO.  Sometimes people say things just to get others off there back.  It could be a case where someoen after being called several times actually says OK I did it.   Sometimes ther Jury will not believe such statements.  As they may believe they were only said to stop the call from alleged victims. There should be something to back that statement up such as facts of excactly how you did the crime. 

 

If you have this issue in your case go ahead and call to get advice.  

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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