§ 4.06 AUDIO RECORDINGS

• Jurisdiction: North Carolina

§ 4.06 AUDIO RECORDINGS

[1] THE DOCTRINE

Like computers, digital and tape recorders present scientific evidence issues. However, the validity of the underlying theory and the reliability of recorders in general are so well accepted that the judge will judicially notice those elements of the foundation. Notwithstanding the courts' willingness today to notice those foundational elements, the courts have traditionally taken a strict attitude towards tape recordings. The courts realize that recordings, digital and tape, can be tampered with. For that reason, in the past the courts generally insisted on a very complete foundation: the operator's qualifications, the equipment's working condition, custody of the tape, an identification of the speakers on the tape, and finally testimony of someone who heard the conversation that the tape is an accurate reproduction of the conversation.

However, the courts have begun to liberalize the standards for the admission of audio recordings. There are two reasons for the liberalization. First, there are now electronic techniques for determining whether a recording has been altered. If the opponent seriously contests a recording's accuracy, the opponent can use an expert to detect the tampering. Secondly and more importantly, the courts have gone back to fundamentals and begun to treat the question of an audio recording's authenticity as a simple question of authentication under Federal Rule of Evidence 104(b). As § 4.01 of this chapter emphasizes, the test for authentication is lax: Has the proponent presented sufficient evidence to support a rational finding of fact that the audio recording is authentic? Given that test, many modern courts are no longer insisting on the traditional, strict foundation. In truth, the last element of the traditional foundation, standing alone, has sufficient probative value to authenticate the recording. If a witness testifies that he or she heard a conversation and that the audio recording accurately reproduces the conversation, there is a permissive inference of the recording's genuineness. Similarly, proof of the other elements of the traditional foundation is sufficient authentication without the last element. Proof of the operator's qualifications, the equipment's working condition, and the audio recording's custody shows that the recording is an accurate reproduction of some conversation; and in principle, testimony identifying the speakers (by any person familiar with their voices) suffices to complete the foundation to authenticate audio recording.

[2] ELEMENTS OF THE FOUNDATION

The strict, traditional foundation includes the following elements:

1. The operator of the equipment was qualified.
2. The operator recorded a conversation at a certain time and place.
3. The operator used certain equipment to record the conversation.
4. The equipment was in good working order.
5. The operator used proper procedures to record the conversation.
6.

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