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Authentication of Oral Statements

The following blog/article was written for my, Eric Roy, and my staff's benefit. The content here is based on the Federal Rules of Evidence. Although there is typically a significant overlap between state and federal rules of evidence, I suggest you defer to your state's rules of evidence to determine how your state court applies these evidentiary rules and standards.

There will often times be testimonial evidence as to what was an opposing party said on a prior occasion. It is easy for us to forget that before testifying to what was said on a prior occasion we need to lay some foundation as to how the witness is aware of what was said. To lay this type of foundation you need to have your witness testify as to the time and place in which the witness observed and overheard the statements. The witness will need to testify that he or she recognized the voice as being the voice of the person who you suggest is the speaker of that content. The witness then needs to go on and explain the basis for his or her familiarity with that voice. This is pretty basic foundational information which will be applied similarly in a variety of contexts.

There will be times when you may want to bring in an expert to prove that a particular individual is the same speaker who can be heard in a previously created recording. These individuals are called spectrography experts. Essentially, what the expert does in this line of work, is to compare two different voice recordings and determine whether the same individual can be identified as the speaker in both recordings. The spectographer uses an instrument that turns the voice recording into a graphic depiction of the person's voice pattern. The expert can compare the graphic depictions of the two voice recordings to determine if there are enough vocal similarities to indicate that the two recordings are from the same speaker. There is some dispute between courts as to the validity of this science. If you are attempting to introduce evidence demonstrated by use of spectography then you will need to lay a strong and complete foundation. The reason for this is that you are introducing a scientific technique. Whenever you introduce evidence based on a scientific technique you need to lay a foundation demonstrating the reliability of the underlying science.

To lay a foundation for sound spectography evidence you need to first have the witness tell the court why he or she is qualified in this scientific arena. Then you can have your expert go on to explain the underlying premise for sound spectography in general along with how widely accepted the science is in the relevant scientific community. Remember that whatever science you wish to have your expert opine upon needs to be "generally accepted" within the relevant scientific community. After you authenticate the science you then go to the next step of authenticating the spectrographic process which your expert used in this particular matter. Again, here you will start with the time and place where the expert witness conducted his examination. Have the witness explain the method he used to record and analyze the data in this specific instance. Then have the witness tell the court whether or not in his or her opinion the voices as recorded in the two recordings are from the same individual speaker. Remember, that anytime you are laying a foundation for a scientific theory which is not widely known, that should spend more time flushing out the experience and credentials of the testifying expert as well as the basis for the soundness of the scientific theory. The purpose of this is to that you not only overcome an objection to foundation to but more importantly to provide education to the court as to the credibility of the forthcoming testimony. After all, your job is to persuade the trier of fact. As you finish with your foundational line of examination be sure to approach and hand the witness your proposed exhibit. Confirm that your witness recognizes this exhibit and ask the witness how he or she recognizes it. It is important that your exhibit is the same one that the witness previously had created and that your witness tell the trier of fact how he or she knows it to be the same evidence. You may want to lay a foundation for chain of custody of that proposed exhibit, depending on the context.

An interesting and often powerful item of evidence is that of tape recordings. Courts vary with regard to the level of foundation they require before introducing tape recorded evidence. If you are dealing with a court that adheres to a strict foundational requirement then you will need to demonstrate the operator's qualifications, the equipment's good working condition, the chain of custody of the tape, an identification of the speaker, and finally testimony from someone who actually heard the recorded conversation in person whom can verify that the tape is an accurate reproduction of what was said in the conversation. Fortunately many courts no longer require a strict adherence to the idea that a comprehensive foundation must be laid. Instead, these courts only require that a witness who was present when the recorded conversation took place can testify to the fact that the recording is an accurate depiction of the conversation which actually took place. This is very similar to how one would lay the foundation for a photograph for instance, wherein you would ask the witness if the photograph is an accurate depiction of the scene at the time the picture was taken.

Thus, if you are dealing with a court that requires you to provide a thorough foundation, then you may have trouble entering a recording which was created by a lay witness. The courts that insiste on a strict adherence require that the operator of the recording equipment be "qualified". If you don't have this fact on your side then just lay the foundation that your witness has used the tape recorder on many prior occasions. Have your witness testify that the recorder has not failed the witness on prior occasions and was in good working condition on the day of the recording. Have the operator account for the chain of custody of the tape between the time of the tape recording and the time of trial. Finally, as always have your witness examine the recording and testify that he or she recognizes it as the same recording that he or she previously created. The witness needs to explain how he or she can identify the recording in their hands to be the same recording as the one they made on the day in question. If you want to prepare a transcript of the recording which you can give to the jurors or judge, then you have a couple of options. One would be to have your witness testify that he or she listened to the recording and while doing so he or she compared what could be heard from the recording to what was written on the transcript. The witness should testify that to the best of the witness's knowledge the transcript is an accurate transcription of the recording.

The rules outlined above are those which pertain to the Federal Rules of Evidence. Most state courts have similar evidentiary rules. That being said, you should always check your state evidentiary rules if you are practicing in state court as they may differ from the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations which is an excellent book on this subject matter and the source of the majority of my own information, as outlined above, on this topic.

Categories: Evidence