§ 4.05 THE AUTHENTICATION OF ORAL STATEMENTS

• Jurisdiction: United States

§ 4.05 THE AUTHENTICATION OF ORAL STATEMENTS

[1] IN GENERAL

Like written statements, oral statements must be authenticated. In the case of a written statement, authentication usually requires identifying the author. In the case of an oral statement, authentication ordinarily consists in identifying the speaker. To do so, the proponent may use several techniques.

[2] LAY OPINION TESTIMONY OF A WITNESS FAMILIAR WITH THE SPEAKER'S VOICE

The proponent may use lay opinion testimony to authenticate an oral statement just as the proponent may use lay opinion testimony to authenticate a writing. In the case of a writing, the witness must testify that he or she is acquainted with the author's handwriting style. In the case of oral statements, the witness must testify that he or she is acquainted with the person's voice. Federal Rule of Evidence 901(b)(5) recognizes this method of voice identification.

The foundation contains these elements:

1. At a specific time and place, the witness heard a voice.
2. The witness recognized the voice as that of a certain person.
3. The witness is familiar with that person's voice. Given that familiarity, under Federal Rule of Evidence 701, the witness can give a skilled lay observer opinion identifying the person's voice.
4. The witness explains the basis for his or her familiarity with that person's voice.
5. The person made a statement during the conversation.

The fact situation is a tort action for slander. The plaintiff, Brown, sues the defendant, Nolan. The plaintiff alleges that Nolan slandered the plaintiff during a telephone conversation with Parish. The plaintiff calls Parish to the stand.

P Mr. Parish, WHERE were you on the evening of April 6th of this year? (1)

W I was at home.

P WHAT, if anything, happened while you were home? (1)

W I received a phone call.

P WHO was the caller? (2)

W It was the defendant, Ms. Nolan.

P HOW do you know that it was Ms. Nolan? (3)

W I recognized her voice, and she said it was Ms. Nolan.

P HOW did you become familiar with her voice? (4)

W We've known each other for years.

P HOW many years? (4)

W Easily 15.

P HOW often have you spoken with her? (4)

W I can't answer; we've spoken thousands of times, I guess. We're neighbors. I see her at least a couple of times a week. Sometimes I bump into her several times in a single day.

P WHAT condition was your telephone in when you received this call?

W It was in good working condition. There was no static or anything.

P HOW much noise was there in the background?

W None that I could tell. I didn't have the stereo on or anything like that, and I couldn't hear any noise at the other end other than Ms. Nolan talking.

P WHAT did Ms. Nolan say during this telephone conversation? (5)

W She said that she had a hot item of news for me.

P WHAT was that? (5)

W She said that the plaintiff, Mr. Brown, had paid $10,000 to bribe one of the City Councilmen to get favorable zoning on some commercial property Brown owns.

[3] THE TELEPHONE DIRECTORY DOCTRINE

The telephone directory doctrine parallels the reply letter doctrine. Under the reply letter doctrine, the courts trust the reliability of the Post Office. Under this doctrine, the courts place their faith in the accuracy of telephone directories. Federal Rule of Evidence 901(b)(6) describes the doctrine: The proponent may authenticate "a telephone conversation" by presenting

Evidence that a call was made to the number assigned at the time to:

(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

This fact pattern creates a circumstantial inference that the person answering was the person the telephone number is assigned to.

The foundation includes these elements:

1. The telephone directory assigns a certain number to the person.
2. The witness called that number.
3. The witness asked for the person to whom the number is assigned.
4. The person answering identified himself or herself as the person to whom the number is assigned.
5. Any other circumstances indicating that the person answering was the person to whom the number was assigned.

The fact situation is a tort action arising from a crash. The expert testimony indicates that the failure of the defendant's brakes caused the crash. One issue is whether the defendant knew his brakes were defective. The plaintiff wants to elicit Mr. Martinez' testimony that he worked on the defendant's car, found the brakes defective, and notified the defendant by telephone. The telephone conversation was Mr. Martinez' only contact with the defendant, Mr. Jackson. The plaintiff is the proponent.

W After examining the brakes, I concluded that they were in dangerous condition.

P WHAT did you do then?

W I decided to notify the owner, this fellow Jackson.

P HOW did you notify him?

W I wanted to phone him and let him know.

P HOW did you do that? (1)

W First I checked the telephone directory to get his number. (If there is a hearsay objection to the reference to the telephone directory, the proponent can respond by citing Federal Rule of Evidence 803(17). That provision creates an exception for "directories . . . generally used and relied on by the public." The Advisory Committee Note gives "telephone directories" as an example.)

P WHAT did you do then? (2)

W I called the number.

P WHERE was the directory when you were dialing? (2) (If there is a best evidence objection at this objection, the proponent could cite Federal Rule of Evidence 1004(d). While the contents of the telephone directory are relevant to lay this foundation, they are "not closely related to a controlling issue" on the merits of the case.)

W It was right in front of me. I was looking at it as I dialed.

P WHAT happened next? (3)

W It rang, and a man answered.

P WHAT did you say? (3)

W I asked to speak to Mr. Jackson, the owner of the purple Corvette.

P HOW did the person answering the phone identify himself? (4)

W He just said he was Jackson, the person I wanted to talk to.

P WHAT, if anything, did he say about the Corvette? (5)

W He told me that he realized that it had some problems.

P WHAT problems? (5)

W He mentioned a problem with the exhaust and the windshield wipers.

P HOW accurate were those statements? (5)

W The guy was right. I'd looked at the car, and I'd seen those problems, among others. The guy I was talking with was obviously familiar with the car.

P WHAT did you say then?

W I told him about the brakes.

P Specifically, WHAT did you tell him?

W I said that they were defective and dangerous. I told him that they could fail anytime and that he should have them repaired immediately.

[4] TESTIMONY BY A VOICEPRINT OR SOUND SPECTROGRAPHY EXPERT

The sound spectrography expert is to the identification of speakers what the questioned document examiner is to the identification of writers. The voiceprint witness is the supposed expert. There are two theoretical premises underlying sound spectrography. The first premise is that interspeaker variability exceeds intraspeaker variability; even though a person's voice pattern changes from time to time, the voice pattern differences among speakers are greater than the variations in a single speaker's voice pattern. The second premise is intraspeaker invariant speech; each voice has certain unique characteristics that it will invariably display under spectrographic analysis. Most speech scientists accept the first premise, but there is still a good deal of controversy in scientific circles over the second premise. Many critics of sound spectrography argue that there has been insufficient experimental verification of the theory of invariant speech. A 1979 report of a committee of the National Academy of Sciences found insufficient empirical verification.

The spectrograph instrument itself includes: (1) a magnetic recording device; (2) a variable electronic filter; (3) a paper-carrying drum coupled to the magnetic recording device; and (4) an...