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7 Steps To Determine If A Telephone Recording Can Be Used In Court

by Craig

A telephone recording can be a powerful piece of evidence during court proceedings, regardless of the nature of a lawsuit (save for instances involving national security, which is a totally different story). But then, not all telephone recordings are eligible to be tagged as such. In this article, let’s discuss the fundamental criteria that qualify a piece of recorded sound as proof for furthering a case.

NOTE: This article is about the United States Federal Judicial System. Laws vary from country to country, state to state. For the most accurate legal advice, please consult a legal professional near you.

The 7 Fundamental Elements of Telephone Recording Evidence

In the past decades, most American judicial circuits have developed an 8-step process to see whether a phone recording (or any sound recording for that matter) can be accepted as evidence or not.

The First Set: Elements for Preliminary Eligibility

[1] The Machine’s Recording Capability

Of course, the mere fact that you already have the recording file or tape in your hands proves that whatever was used to create it is capable of creating it.

[2] Technical Aptitude of the Person

Back in the old days, most telephone recorders were extremely complicated to use. However, with technological advances along the way, an average person can easily operate most phone recording devices.

[3] Sufficient Consent of the Calling Parties

You can read my previous articles entitled, “5 Steps To Discreetly (and Legally) Record Phone Calls” and “Is It Legal? How Phone Recording Device Laws Apply (or Do Not Apply) To You”. These articles discuss what “sufficient consent” means, along with the myriad nuances of the element.

[4] Clarity of the Recording

Generally, a telephone recording is acceptable in court only if the inaudible parts are too minimal to affect the reliability of the material as evidence. While the determining what’s “minimal” and what’s not is really up to the judge and/or the jury, the best way to prevent controversies with this element is to make sure that the telephone call recorder used is of excellent quality, and is suitable for the circumstances in which it will be used.  For more information, you may read my previous article entitled, “How to Choose the Telephone Recording Device that’s Right for You”.

The Second Set: Elements of Authenticity

Now that we have the three basic elements taken care of, we are now tasked to prove the authenticity of the recording itself. To do this, we would need to show that the call recording meets the standard set by the Federal Rule of Evidence #901, which requires the nature of the alleged recording to discount (a) any chance of being attributed to the wrong person, and (b) any sign of tampering.

These two conditions may be met by demonstrating the following:

[5] Inconsistencies during playback

During playback, the telephone recording should not show signs of unnatural dead air, changes in pitch or background noise, or any other indication that the recording is unoriginal. Of course, real-life conversations may sometimes involve dead air, so that type of aural gap is acceptable in most circumstances.

[6] Logistical factors: Time-stamped Record of the Record’s Paper Trail

The recording’s chain of custody is one of the most important elements to consider, as it has caused many plaintiff and defendants more than just a few headaches. Basically, this element requires proof that the original recording is essentially identical to the one that’s being brought to court. The physical storage medium will be passed from one person or another so the risk of tampering increases. Thus, it is essential to carefully documents who-held-what from start to finish.

[7] Recognition of the Conversing Parties

The conversing parties in a telephone recording should be clearly identifiable. This can be done by simple comparison or a person’s live voice to the person’s allegedly recorded voice.  However, there are many instances where this is not possible, so that a forensic analyst may be required. To improve the quality of the recording, you may increase the “bit rate” of the recording device, or choose a device that uses a mechanism that minimizes audio loss.

These are the fundamental criteria that a recording must fulfil in order to be accepted as evidence in court. You may notice that there are many clauses that seem to rely heavily on subjective court opinion.

With these said, choosing a high quality telephone recording device is just as important as getting a good attorney.

Numeros 800 April 20, 2011 at 7:53 pm

If the recording is authentic then it definitely should be allowed into court!

That being said…this article was very informative…thanks!

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