Usually not. California generally requires the consent of everyone in a private conversation before anyone records it, so secretly recording your partner is usually a crime. Narrow exceptions can apply if you are part of the conversation and reasonably believe it relates to your partner committing domestic violence or certain other crimes, or if you are seeking a domestic violence restraining order.

Intentionally using an electronic amplifying or recording device to eavesdrop on or record a confidential communication, without the consent of all parties to it, is a crime under Penal Code section 632, whether the conversation happens in person or by phone. Being a participant in the conversation yourself does not change that. A violation is punishable by a fine of up to $2,500 per violation, up to one year in county jail or a state prison term, or both; after a prior conviction for this or a related recording offense, the fine can reach $10,000 per violation.

Calls involving a cell phone or cordless phone get broader protection. Penal Code section 632.7 makes it a crime to intentionally record such a call without the consent of all parties, whether or not the conversation is confidential (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 771, fn. 2), and it applies to a person on the call, not just an outsider (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183).

What makes a conversation “confidential”

Section 632 covers only a “confidential communication,” meaning one carried on in circumstances that reasonably indicate a party wants it confined to the people in it. It does not cover a conversation in a public gathering, or in any other circumstance where the parties may reasonably expect to be overheard or recorded. The California Supreme Court has held that a conversation is confidential if a party has an objectively reasonable expectation that it is not being overheard or recorded; the party does not also have to expect that the content will never be repeated to anyone else (Flanagan v. Flanagan, 27 Cal.4th 766). California’s pattern jury instruction for this crime, CALCRIM No. 3010, likewise requires proof that another party intended the conversation to be confidential and had objectively reasonable grounds to believe it would be.

The exceptions for evidence of domestic violence

The recording statutes, including sections 632 and 632.7, do not prohibit one party to a confidential communication from recording it to obtain evidence reasonably believed to relate to the other party committing extortion, kidnapping, bribery, a felony involving violence against a person, a violation of Penal Code section 653m (threatening or annoying calls and electronic contacts), or domestic violence as defined in Penal Code section 13700, and they do not make that evidence inadmissible in a prosecution for those crimes (Penal Code section 633.5). Two limits matter. You must be a party to the conversation, so the exception does not cover a device left to capture your partner’s conversations with other people. And “domestic violence” has the narrow meaning in Penal Code section 13700: bodily injury caused or attempted intentionally or recklessly, or conduct that puts someone in reasonable apprehension that serious bodily injury is imminent, directed at a spouse, cohabitant, or dating or engagement partner, whether current or former, or at the other parent of the suspect’s child. Recording to catch an unrelated lie or an affair does not fit.

A separate rule helps someone seeking a domestic violence restraining order. A victim of domestic violence who is seeking the order, and who reasonably believes that a confidential communication made to them by the perpetrator may contain evidence germane to the order, may record it for the exclusive purpose and use of providing that evidence to the court. The judge issuing the order may also, at the victim’s request, include a provision allowing the victim to record prohibited communications from the perpetrator (Penal Code section 633.6).

Whether an unlawful recording can be used

In a civil, family, or administrative proceeding, such as a restraining order hearing or a custody case, a recording made in violation of section 632 is not admissible except as proof in a case about that violation (Penal Code section 632(d)). Criminal cases are different: the California Supreme Court has held that the voter-approved Right to Truth-in-Evidence provision abrogated that exclusion in criminal proceedings, so section 632(d) does not keep a relevant recording out of a criminal case (People v. Guzman (2019) 8 Cal.5th 673). Either way, making an unlawful recording carries its own risk. It can be prosecuted under section 632 or 632.7, and the person recorded can sue for the greater of $5,000 per violation or three times their actual damages, and for an order stopping further violations, without having to prove any actual damages (Penal Code section 637.2).

Practical steps

  • Before recording anyone without their knowledge, talk to a lawyer if you can. Whether a conversation is confidential, whether the call involves a cell phone, and whether an exception fits all depend on the facts.
  • If you already have a recording, do not destroy or alter it, but do not assume it can be used. Let a lawyer decide whether and how it can be offered.
  • Do not use any recording, lawful or not, as a reason to contact a protected person in a way a protective order forbids.

If you are weighing whether to record a partner, or a recording already exists in your case, the Law Offices of David S. Chesley can look at the circumstances with you and lay out your options. Call (800) 755-5174 to talk through your situation.