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Hastings Women’s Law Journal

Abstract

Domestic cases of eavesdropping and wiretapping pose a special problem for laws that were initially meant to govern police misconduct and espionage. California voters passed Proposition 8 but its passage led to many additional questions including whether the law truly champions victims' rights and whether it protects innocent defendants. Federal law, by comparison, sets a minimum standard of one-party consent for the admissibility of wiretap or eavesdropping evidence in criminal trials. This standard has been shown to permit parental wiretaps without allowing purely clandestine recording of another's activities, including spouses and domestic partners. In short, privacy rights are protected to the extent one can expect to exert more general individual rights. It appears that legislatures and voters have attempted to address past and future victims' concerns with evidentiary rules that ensure victims retain sufficient legal recourse against their assailants. Peculiar complexities remain, however, in the application of civil and criminal penalties available for spousal, relationship, and interfamilial recordings. "Truth in evidence" has prevailed, but is it doing the work it should?

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