As we have seen, recording conversations can jeopardize peoples reputations, livelihood and even their freedom. In the latest recording, Stephen Collins from 7th Heaven, admits to child molestation and now faces serious consequences. Can this be held against him in a court of law? Also recently, Don Sterling lost his Clippers Empire over a recorded racist rant to his mistress. Are these recordings legally admissible in court? Is it legal to do this to people? What about recording the police? It is important to know your rights as a patient, grower and/or collective manager.
Expectation of privacy can be the most important factor that the court will use in determining admissibility. In Stephen Collins' case, the statements were made during a therapy session. Therefore, he had the expectation of privacy associated with the therapist-patient privilege (the same goes with doctors, lawyers, psychologists, etc.), and any recording conducted by the therapist would be unethical, illegal and inadmissible. The caveat there, though, is that the expectation of privacy laws diminishes when a third party is present. Here, Collins' wife attended the session and actually conducted the recording. Although she is a third party, the question arises whether the recording constituted “confidential marital communications” which is also inadmissible in California court. Although Collins perhaps had a legitimate expectation of privacy, California law allows secret recordings if they're done in an effort to gather evidence for a criminal case—which it seems like is the case here.
Ultimately it will be up to a judge to decide the hotly contested issue of admissibility here, but my money is on the recording coming in. California law states that anything relevant is admissible. This basically tells a judge to find a way to get it in!
What about cases where no crime is committed, such as Donald Sterling's racist rant? In Donald Sterling's case, the recording of his racist statements is likely inadmissible in a California civil suit. In fact, under California Law it is illegal to record a conversation, in person or telephonically, without the consent of all parties involved. Then, why did Donald Sterling lose the Clippers? The NBA is a private organization and has its own practices and regulations, which means it can do whatever necessary to benefit its interests. Therefore, it is within the NBA's board members' power to oust Sterling if they felt it best for the organization.
Is it admissible if recorded in a public place? Even if several parties are present, the recording may not be admissible if the person being recorded has an “objectively reasonable expectation that no one is listening or overhearing the conversation.” Meaning, in a public setting, if the recorded party thinks that no one can listen in, then it may be inadmissible in court, depending on the factual circumstances.
Are recordings by law enforcement legal? In California, on-duty police officers may legally record conversations and interactions with the public. Since these communications are recorded by public officials (cops), they can become public record. That is why you see some of celebrities exposed for being unpleasant, as was the case with Mel Gibson shouting anti-Semitic remarks at a police officer.
Can we record encounters with law enforcement? Yes, but the officer must be on duty and the recording cannot interfere with their investigations or duties. You should record police officers when safe and possible, to assure they conduct themselves in a professional manner and don't take advantage of their authority.
MMJ Note: Cannabusinesses should have video cameras set up to protect themselves from the police, if ever raided. It would also behoove those in the delivery business to have hidden recording devices in the transport vehicles, if stopped by the police. Catching any kind of misconduct by the police may help in a case against you or your business.
Contact Meital Manzuri for further help. Meital Manzuri is a Los Angeles-based criminal defense attorney, speaker and consultant for patients, collectives and dispensaries. If you have questions about medical cannabis or any other criminal defense matters, she can be contacted via phone at (310) 601-3140 or www.Manzurilaw.com.