Chapter 13 - § 13.11 • RECORDINGS

• Jurisdiction: Colorado

§ 13.11 • RECORDINGS

§ 13.11.1—Introduction

A recording produced on disc, tapes, or wire can be a dramatic form of demonstrative evidence. It may be admitted if found relevant and a proper foundation is laid. If evidence is relevant, it is admissible unless its prejudicial effect outweighs its probative value. People v. Ortega, 672 P.2d 215 (Colo. App. 1983).

In general, the proponent of the recording must demonstrate that the recording is an accurate reproduction of the conversation or event. People v. Baca, 378 P.3d 780, 786 (Colo. App. 2015), overruled in part by Gonzales v. People, 471 P.3d 1059 (Colo. 2020). Traditionally, this required verification of the content of the recording and the recording process. This was accomplished by the testimony of a witness who had either participated in the original conversation or who had listened in on it, along with testimony from a witness who could testify to the "competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in the relevant portions of the recording, and the identification of the relevant speakers." Alonzi v. People, 198 Colo. 160, 163 (1979) (quoting United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977), and implicitly abrogated by adoption of CRE 901).

The more current trend is to allow for the admission of a recording when a percipient witness can testify to either the contents of the recording or, if unavailable, the reliability of the recording process. Baca, 378 P.3d at 786.

The foundation for the admission of a recording is very similar to that for the admission of a photograph or videotape. The proponent need only establish that the recording is an accurate reproduction. See CRE 901(b)(1); see also People v. Armijo, 179 P.3d 134, 137-38 (Colo. App. 2007).

§ 13.11.2—Edited Recordings

Authenticity does not necessarily require a chain of custody. Alonzi, 198 Colo. at 163. However, an edited or altered recording could be ruled not authentic and therefore inadmissible. The proponent of such evidence should take care to produce clear and convincing evidence of authenticity and accuracy, although a party challenging the authenticity of a recording will require more than "mere speculation" to preclude the admissibility of a recording on this basis. Id. at 164. The presence of some inaudible segments does not necessarily render the entire recording unreliable. United States v. Knohl, 379 F.2d 427 (2d Cir. 1967).

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