§ 27.06 TELEPHONE CONVERSATIONS: FRE 901(B)(6)

• Jurisdiction: United States

§ 27.06. TELEPHONE CONVERSATIONS: FRE 901(b)(6)

Rule 901(b)(6) provides for the authentication of telephone conversations. Outgoing and incoming calls must be distinguished.

[A] Outgoing Calls

The rule applies only to telephone calls made by the witness to the person or to the number in question (i.e., outgoing calls). In the drafters' view, the "calling of a number assigned by the telephone company reasonably supports the assumption that the listing is correct and that the number is the one reached."⁵⁷

[B] Incoming Calls

Incoming telephone calls are not covered by this rule. The "mere assertion of his identity by a person talking on the telephone is not sufficient evidence of the authenticity of the conversation and . . . additional evidence of his identity is required."⁵⁸ Caller identification systems alter this result.⁵⁹ Furthermore, other ways to identify the speaker of an incoming call may apply. Incoming (as well as outgoing) calls may be authenticated by identification of the speaker's voice,⁶⁰ by the content of the conversation,⁶¹ or by the reply message technique.⁶²

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Notes:

^[57] Fed. R. Evid. 901 advisory committee's note. They also extended the rule to agents: "If the number is that of a place of business, the mass of authority allows an ensuing conversation if it relates to business reasonably transacted over the telephone, on the theory that the maintenance of the telephone connection is an invitation to do business without further identification. The authorities divide on the question whether the self-identifying statement of the person answering suffices. Example (6) answers in the affirmative on the assumption that usual conduct respecting telephone calls furnish adequate assurances of regularity, bearing in mind that the entire matter is open to exploration before the trier of fact." Id. (citations omitted).

^[58] Fed. R. Evid. 901 advisory committee's note. See also United States v. Khan, 53 F.3d 507, 516 (2d Cir. 1995) ("self-identification by a person who makes a call, alone, is insufficient for authentication purposes").

^[59] E.g., Culbreath v. State, 667 So. 2d 156, 162 (Ala. Crim. App. 1995) ("the caller ID display is based on computer generated information and not simply the repetition of prior recorded human input or observation") (internal quotations omitted); People v. Caffey, 792 N.E.2d 1163, 1191 (Ill. 2001) ("only requirement necessary for the admission of caller ID evidence is that the caller ID device be proven...