Sun. Mar 26th, 2023


California Penal Code section 1044 explains that the duty of a trial judge is to limit the introduction of evidence with a view to the “expeditious and effective ascertainment of the truth.”  However, as we know, judges often exclude evidence that is vital to the ascertainment of the truth.  The California Supreme Court has brought us one step closer to finding the truth with its decision in People v. Guzman (2019) Cal.5th 673.

Law enforcement sometimes runs into the sticky situation while investigating a crime when the witness approaches them and tells them they have evidence in the form of a phone conversation that the witness has secretly recorded.  California Penal Code section 632(a) makes it a misdemeanor for a person to record a confidential communication without the consent of all parties to the communication.  Exceptions are codified for surreptitiously recording communications evidencing the crime of extortion, kidnapping, bribery, and any felony involving violence, such as domestic violence.  Otherwise, Penal Code section 632(d) says that the recording is inadmissible in any judicial proceeding.  Really? So, the victim records the defendant telling her that he stole her car, and that is inadmissible?!  What happened to the search for the truth?

Defendant Guzman was convicted of two counts of lewd and lascivious acts upon a child under the age of 14.  Defendant had inappropriately touched two girls, aged 10 and 12, who were friends with Defendant’s niece, Lorena, an adult.  Both girls confided in Lorena, who told the girls to stay away from Defendant Guzman.  One victim reported the molest to her mother, Esperanza, and told Esperanza that Lorena had warned her about the defendant.  Esperanza then called Lorena to inquire.  Without Lorena’s knowledge or permission, Esperanza tape recorded her phone call with Lorena.  On the first day of jury selection, Esperanza alerted law enforcement of the recording.  Lorena was expected to be called as a witness for the defense.  Upon learning of the recording, the People informed the court that it intended to use the recording during cross-examination of Lorena.  The trial court allowed the recording, holding that the Right to Truth-in-Evidence provision of Proposition 8 abrogated the statutory provision of Penal Code section 632(d).

The California Supreme Court affirmed the conviction.  Penal Code section 632 was enacted in 1967 as part of the Invasion of Privacy Act.  In 1982, California voters acted to limit the various grounds for excluding evidence at criminal trials by amending the California Constitution with the passage of Proposition 8.  The Right to Truth-in-Evidence provision of Proposition 8 prevents the exclusion of evidence in criminal proceedings except by statutes enacted after Proposition 8 by a two-thirds vote of each house of the Legislature, with some exceptions expressly listed in Proposition 8.  The voters wanted the law to allow for most relevant evidence to be admitted in criminal cases.  Here, the Right to Truth prevailed over the Invasion of Privacy.

What does this mean for you?  Yes, Esperanza still committed a misdemeanor; however, I don’t know any District Attorney that is going to charge a mother of a molest victim under these circumstances…  keep in mind, had law enforcement directed Esperanza to make and record that phone call, her actions would have been perfectly legal pursuant to California Penal Code section 633.



allow anyone to recording any criminal civilians harming them 

The Truth Wins, Finally!

California Supreme Court Concludes Over Secret Recording: Not Barred!

People v. Guzman – Secret Recordings – Right To Truth Prop 1982

Right to Truth – Victims’ Bill of Rights – Prop 8 1982



Page 2135 Calcrim  defines confidential communication as such:
[A confidential communication does not include a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.]

State Public places allowed Private places allowed Hidden cameras allowed Consent required
Alabama Yes No Yes No
Alabama Yes Yes No In private places
California* Yes Yes No No
Delaware Yes No With consent Yes
Florida Yes No Yes No
Georgia Yes Yes No No
Hawaii Yes Yes No Yes
Kansas Yes No With consent Yes
Maine Yes No With consent Yes
Michigan Yes With consent With consent Yes
Minnesota Yes No Yes No
New Hampshire Yes No With consent Yes
South Dakota Yes No With consent Yes
Tennessee Yes With consent With consent Yes
Utah Yes With consent With consent Yes