Generally, the legality of recording the proceedings of any court trial is always a blurred line. This uncertainty could be stemmed from the fact that the U.S. Supreme Court allowed each state to place their own reasonable restrictions on the use and prohibition of recording devices in the courtroom. In other words, laws regarding recording devices in trials vary significantly from state to state. Regardless, there are several types of courts, such as Drug Courts, City Courts or Mental Health Court. Some states allow recording equipment in trial and appeals court, while other states only allow such in an appeals court.
In California, there is a specific penal code that addresses this issue. As stated in California Penal Code PC 167, it is illegal to record, or attempt to record, all or a part of the court proceedings if:
- He/she was wilfully and knowingly recording the trial;
- He/she is not a member of the jury that is deliberating or voting;
- He/she did not have the permission of the jury to record the trial.
But of course, there are conditions that must be taken into account by the prosecutor. For instance, the law does not apply if:
- The person recording the session is a trial juror taking notes solely for the purpose of assisting him in the performance of his duties as a juror;
- The recording is meant for judicial education or publication;
- The recording is for closed-circuit television broadcasts solely within the courthouse or between court facilities if the broadcasts are controlled by the court and court personnel; and
- The person recording the session obtained advance permission from the judge and shall only use the recordings for no purpose other than as personal notes.
Above all, the recording of any court trials should not adversely affect the fairness and dignity of the proceedings. Otherwise, any material produced by such recording will be deemed unlawful.
The following are some of the scenarios which would violate PC 167:
- A 37-year-old man was arrested for domestic abuse against his wife after learning that she was cheating on him with their next-door neighbor. During his trial, his lawyer asked the plaintiff if the allegations of adultery were true. The man then immediately pulled up his phone to record her wife as she openly admits in court that she has been, in fact, cheating on him. The judge noticed what the defendant was doing and confronted him. The man then reasoned out that he wanted to record what she was about to say so he would be able to play it back to their children and prove to them that it is their mother's fault.
- One night, a social media influencer was ticketed for running a red light. She showed up on her court hearing date, during which she secretly opened her phone and started recording herself listening to the judge. She then posted the video to the internet as some sort of an update to her thousands of followers.
- Your brother was charged for brutally beating one of his classmates during an argument. To support him, you decided to attend his court trial. However, upon arriving there, you realized that the judge who is about to preside his trial is your ex-boyfriend. You then took your phone out and snapped a picture of him without his knowledge nor consent. You then sent the picture to your best friend, expressing how surprised you are at the coincidences.
There are several statutes that can be closely-tied with California Penal Code PC 167, such as:
- Picketing court (California Penal Code PC 169);
- Vandalism (California Penal Code PC 594);
- Contempt of court (California Penal Code PC 166);
- Record without consent (California Penal Code PC 632.7); and
- In custody recording (California Penal Code PC 636).
Penalties for Recording Court Proceedings
Anyone who unlawfully uses a recording device to record a court trial is guilty of misdemeanor. This level of offense is less serious than a felony but heavier than an infraction.
Typically, the penalties for misdemeanor include:
- A county jail sentence of up to 6 months; and/or
- A fine not exceeding $1,000.
Take note, however, that additional penalties may be imposed if you violate two or more laws other than PC 167.
If you or someone you know is facing a charge under California Penal Code PC 167, we highly encourage you to reach out to any of our offices around California. Getting in-touch with a criminal defense lawyer will help you significantly improve the possible outcomes of your case.
Moreover, you may also discuss the following legal defenses that you and your defense attorney could use:
- You did not wilfully or knowingly record the trial (ex: you accidentally launched the recording software of your phone);
- There was no court trial being conducted; or
- You were falsely accused.
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