Using Recordings When Requesting a Domestic Violence Restraining Order
Jessica A. Abdollahi has been a practicing attorney in California since 2015, and focuses her practice in the area of family law (mainly litigation), and primarily in Sacramento County and neighboring counties. Prior to being admitted to the Bar in California, she was a practicing attorney in Florida. She currently serves as the Sacramento County Family Law Executive Committee’s Legislative Liaison to the California Lawyers Association’s Family Law Executive Committee.
Representing parties involved in the request for a domestic violence restraining order ("DVRO") under the Domestic Violence Prevention Act ("DVPA")1 can be trying at times. The DVPA is intended to prevent the recurrence of acts of domestic violence and to provide for a physical separation of the parties involved for a period of time sufficient to enable them to seek a resolution of the causes of the violence or abusive conduct.2DVPA proceedings are often heavily reliant upon hearsay and involve the lower evidentiary threshold of preponderance of the evidence.3 With the current advances in technology and the ability to record a conversation with ease (such as with smart phones), there are more and more instances where one party has secretly recorded a private conversation.
If you have not yet encountered this in your practice, there is a good chance you will. Imagine: Your client is sitting in front of you, telling their story of the abuse they have endured during their relationship. They tell you their significant other has threatened them and said some horrible and nasty things to them. You are listening, but at the same time your mind is going through a full-blown legal analysis; you are gauging the credibility of your client since these types of cases often come down to who is more believable. Then your client drops a bomb. They tell you they have secretly recorded the conversations with their significant other. On one hand, you are excited about the prospect of potentially having rock-solid evidence of the perpetration of domestic abuse. On the other, you also have a potential unlawful recording, and the introduction of this in court could subject your client to criminal penalties. While the application of the laws of evidence may at times be somewhat relaxed in the world of family law, what happens in our cases has very serious and real implications outside of our arena.