§ 27.07 SOUND RECORDINGS

• Jurisdiction: United States

§ 27.07. SOUND RECORDINGS

Audiotapes may be admissible under several theories. Rule 901(b)(5) specifies voice recognition by a witness familiar with a person's voice as a method of authentication, "whether heard firsthand or through mechanical or electronic transmission or recording."⁶³ A sound recording may also be authenticated under Rule 901(b)(9), if the process or system used to produce the recording is shown to be reliable.⁶⁴

[A] Inaudibility

Audiotapes that are partially inaudible are commonly encountered.⁶⁵ Their use at trial raises questions best addressed under Rules 403 and 611(a).⁶⁶ The main danger is misleading the jury. Sometimes, however, more serious issues are raised. For example, in United States v. Patrick,⁶⁷ a defense expert testified that a tape had been "dubbed." A prosecution expert disagreed. The court ruled that "tape authentication is a subject of scientific knowledge" and that the prosecution expert was qualified in this field.⁶⁸ If a foundation is laid and the opponent is afforded the opportunity to cross-examine the witnesses, the jurors can decide for themselves what is on the tape.

[B] Transcripts

Even when a tape is audible, the proponent may still want to provide the jury with a transcript. This practice is permissible so long as there are no material differences between the tape and transcript. Moreover, the jury should be instructed that the transcript is merely an aid to facilitate listening and that if jurors find differences between the tape and transcript, they should disregard the latter.⁶⁹

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Notes:

^[63] See State v. Taylor, 875 So. 2d 962, 970 (La. App. 2004) ("Lyntrell Taylor testified that she had listened to the recording, and could identify one of the voices on it as her own."); State v. Gaither, 587 S.E.2d 505 (N.C. App. 2003) (tape recording used as evidence in an armed robbery trial was properly authenticated as a recording of a 9-1-1 call made during the incident; sufficient that store security guards who made the call identified their own and each other's voices on the tape). See also State v. Konohia, 107 P.3d 1190, 1195 (Hawai'i App. 2005) ("When the relevancy of a recording does not depend on the identification of certain voices, those voices need not be identified to establish the authenticity and admissibility of the recording. . . . The recording of Coral-Sands' 911 call captured the actual sounds of the alleged assault, including the sounds of a violent struggle and the tones of voice used by...