July 18, 2016

police wiretapBy now everyone knows the basic facts of the recent phone conversation between Taylor Swift and Kanye West, which was later leaked by Kim Kardashian on Snapchat.  Recently, Kim Kardashian decided to allow the world to hear a conversation that was allegedly tape recorded by Kanye West when he was speaking to Taylor Swift about the lyrics of a song he wished to record.

The question now that has to be decided is whether Kanye West and possibly Kim Kardashian are guilty of a criminal offense.

Under California Penal Code Section 632, it is a crime to use any type of amplification or recording device to listen in on someone’s conversation without their consent.

Specifically, the law says “Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by up to 364 days in jail and a $2500 fine.”

So what does the prosecution have to prove if they wish to convict Kanye West of this crime? There are only 4 elements of this crime that must be proven:

  1. You intentionally eavesdropped on a conversation;It sure seems that Kanye West intentionally decided to record the conversation.
  2. That the persons engaging in the conversation had a reasonable expectation that the conversation was private and not being overheard or recorded;So far there is every reason to believe that Taylor Swift thought that the conversation was a private one and that nobody else would be listening to it.
  3. That you did not have the consent of all parties in the conversation,Taylor Swift has claimed that she did not consent to have the conversation tape recorded. However, there are some that are stating that Mr. West as a matter of course requires that all persons to his tape recorded conversations state on the recording that they consent to the recording being made. Whether Ms. Swift did consent to the conversation being taped would be a major issue in Mr. West were prosecuted in this case.and;
  4. You used an electronic device to amplify or record the conversation

It is very clear that Kanye West did use some sort of electronic recording device to record the conversation.

If Kanye West is convicted of this offense he faces up to 364 days in custody and a maximum fine of $2,500.00.  In addition, if Kim Kardashian was involved in the taping of the conversation and conspired with her husband to make the recording she could also face criminal charges.

Will the District Attorney prosecute Kanye West or Kim Kardashian?

The answer in part lies with what Taylor Swift wants to do. She is the alleged victim in this case. She would have to decide to make a formal police report. If she did the police are obligated to investigate and then if the prosecutors believe they can prove the case then he can be prosecuted.

It appears Swift has previously indicated her desires in this matter when in February it was reported that she threatened West with criminal prosecution for recording her without her knowledge, and demanded he destroy any video he may have.

Will politics play a role in the decision?  Will Taylor Swift want to avoid additional adverse publicity by pursuing criminal charges? That is anyone’s guess at this point.

However, the lesson to be learned here is you should NEVER electronically record a conversation with another person unless you have all parties to the conversation state while the tape is rolling that they consent to the conversation being recorded. Your criminal record and freedom has to always come first. Always think about your future before you take steps to tape record any conversation without the consent of all parties to that conversation.

Author

Author: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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