Section 7.35 Admissibility at Trial

• Library: Sources of Proof (2014 Ed.)

E. (§7.35) Admissibility at Trial

An audio recording that contains relevant and material information should be admissible if the following foundation is laid:

· A showing that the recording device was capable of taking testimony

· A showing that the person who operated the device was competent to do so

· A showing that the recording is authentic and correct

· A showing that no changes, additions, or deletions have been made

· A showing of the manner in which the recording has been preserved

· Identification of the speakers

· A showing that the statements on the recording were voluntarily made without any kind of inducement

See:

· In re Littleton, 719 S.W.2d 772, 775 n.2 (Mo. banc 1986)

· State v. Spica, 389 S.W.2d 35, 44 (Mo. 1965)

· State v. Settle, 670 S.W.2d 7, 11 (Mo. App. W.D. 1984)

Cf. State ex rel. Casey’s Gen. Stores, Inc. v. City of Louisiana, 734 S.W.2d 890, 897 (Mo. App. E.D. 1987) (the trial court properly excluded tape recordings of city council meetings because the city clerk could not identify offered tapes as the ones she used to record sessions and she could not be certain the tapes had not been altered). Missouri courts have recognized that “recordings are normally to be considered as superior to human memory as evidence of the contents of a conversation.” State v. Welty, 729 S.W.2d 594, 600 (Mo. App. S.D. 1987).

In State v. Murphy, 796 S.W.2d 429 (Mo. App. S.D. 1990), the defendant claimed error in the admission of an audio recording of him purchasing drugs from Trotnik, an undercover police officer, because the prosecutor failed to lay an adequate foundation that Copeland, the officer actually running the recorder, was competent to operate it. The appellate court held that the foundation was sufficient. Although the recording was not of the highest quality, it was audible and understandable. Trotnik testified that the recording accurately recorded the conversation that occurred. Even though there was no showing that Copeland had been trained to use the recorder or had operated it successfully on a prior occasion, the process was so elementary that no training was required, and the fact that the recording was audible and understandable tended to establish that Copeland was competent to operate the recorder.

If a portion of an audio recording is inaudible or unintelligible, the remainder of the recording is still admissible, in the trial court’s discretion, if the inaudible or unintelligible portions do not render the recording as a whole untrustworthy. In re L___, 499 S.W.2d 490, 494 (Mo. banc 1973); State v. Clark, 693 S.W.2d 137, 140 (Mo. App. E.D. 1985). In State v. Luton, 795 S.W.2d 468 (Mo. App. E.D. 1990), the defendant asserted error in the admission of an audio recording in which the defendant offered to pay $15,000 to have her husband murdered. The recording, which was recorded by an undercover agent, lasted about one-half hour and contained many damaging statements by the defendant. Although some parts of the recording were inaudible, the bulk of the recording was clear and understandable. The agent testified that the recording was accurate, but various parts of the recording could not be heard. The appellate court held that the trial court properly admitted the recording into evidence because the inaudible portions of the audio recording did not render the entire recording untrustworthy.

...