What Does Admissibility in Court Mean
Evidence is the currency of the courtroom. It is the primary way the court determines whether or not to rule in favor of one party or the other in a lawsuit. So how does the court determine whether or not evidence is admissible? That is another way of saying that how does it determine whether or not it can be used to determine who is ultimately correct? Generally speaking, it determines whether or not it can be considered sufficient to convince a reasonable person. To do this, it assesses whether something is relevant and reliable. In other words, does it matter and can we trust it?
For something to be relevant, it must be reasonably connected to the core issue. For example, if you’re being sued for breach of an oral contract, a receipt showing a payment of $500 to the plaintiff for groceries two years ago is not relevant to the case (assuming, of course, that payment is not the $500 that was at issue in the alleged contract). However, a voice recording of the plaintiff trying to persuade you to breach your contract with a request to breach the agreement would be relevant evidence.
Do note that a judge may allow some irrelevant things into evidence if it is potentially valuable to determine the truth. However, this will be rare and it will not be used in most cases.
The second part of this "relevant and reliable" test is the reliability of the evidence . Simply put, when something is reliable, it means you can trust it! Examples of unreliable evidence might be unreliable witnesses (such as someone with a clear bias) or someone without firsthand knowledge or recollection of the incident in question. It can also simply be a case of unverifiable fraud or hearsay.
When it comes to voice recording, how reliable will the recorded voice be? Do you have the ability to record the telephone call secretly? Of course, you do. Federal law actually does allow secret recordings as long as it is done by at least one person who is a part of the conversation. However, some states do not allow secret recordings and you must be involved in the call in order to record it.
In general, evidence that is relevant and reliable is admissible. Evidence that is irrelevant or unreliable is inadmissible.
As an example, if someone were to take a picture of a building, that picture could be relevant evidence of what the building looked like at the time the picture was take. However, if the picture is taken after renovations on the building have been completed, it would not be relevant evidence of what the building looked like in general. The picture simply isn’t reliable. Likewise, a picture of a piece of equipment being used in the workplace after that equipment suffered a malfunction would be irrelevant because it is simply not a good representation of the equipment under normal conditions.
Legal Standards for Voice Recordings
Compliance with specific legal criteria is essential for the admissibility of voice recordings as court evidence. The variance in legal systems means that jurisdictional nuances can either ease or complicate evidentiary challenges.
The following are the common legal requirements for the admissibility of voice recordings: The Admissibility of Voice Recordings in Different Jurisdictions The U.S. Federal Court permits the use of tape-recorded conversations captured in violation of the wiretap law, provided the conversation was not recorded by a law enforcement officer acting under the color of government authority. Under the wiretap statute (18 USCS § 2511) it is illegal to capture any wire or oral communication as a result of a nonconsensual interception. However, wiretap exceptions permit the use of such tapes for impeachment by either party. The court held the exception did not preclude the admissibility of a private citizen’s video-taped conversation with the defendant in which the defendant admitted he committed a crime. The court noted that the informant’s act of tape-recording the conversation was an illegal interruption of a two-party conversation, but despite this, the tapes were admissible for impeachment purposes. The court said there was no evidence that either party had intended to procure the tape-recording for future use in a judicial proceeding, and it reversed a ruling that had excluded the tapes on the basis of the wiretap statute. In the U.K., the Interpretations Act 1975 (Section 74) allows Judges to consider any tape-recorded material in criminal proceedings unless the defendant can show that its use in evidence would have caused substantial injustice to the defendant. Under the U.N. General Assembly Resolution 39/119, the Principles Governing the Protection of All Persons under Any Form of Detention or Imprisonment 1982, it is a violation for State authorities to obtain any substantiated evidence by means of torture. Thus, a defendant can review any relevant evidence of his own torture if a case has been brought before the Court. For any recordings obtained as such, an irregularity is arguable for the fact that the accused person’s right to fair trail has been impaired.
Consent and Privacy Regulations that Affect Admissibility
Consent and privacy laws vary by region, and they can significantly affect whether a voice recording is admissible in court. The cornerstone of admissibility for voice recordings is whether consent is required for the recording to be considered legal. In other words, does the law require that all parties to a conversation consent to having that conversation recorded? This is determined by local and federal statutes and regulations.
In the U.S., consent is governed at two levels: federal and state. Federal laws, including Title III of the Omnibus Crime Control and Safe Streets Act of 1968, authorize individuals to record a monoaural (basic one-channel) conversation if the person doing the recording is a party to the conversation (one-party consent law). Under a federal one-party consent law, an individual is legally permitted to use a recording device to capture a communication in which he or she is a participant or in which he or she has otherwise consented to the use of a recording device. Conversely, under a federal two-party consent law, both recording directions must consent to the use of a recording device before the recording may be conducted. Some states do have statutes that grant broader privacy protections than the federal laws.
State laws similarly fall into two categories: one-party and two-party consent laws. A one-party consent law also allows a participant in a conversation to use a recording device to capture the conversation, whereas a two-party consent law requires the consent of all participants in the conversation and may have more stringent notice requirements.
The majority of states (about 38) are one-party consent states, meaning that as long as one party to a conversation consents to the recording, the recording is legally permissible and, therefore, admissible in court. On the other hand, 11 states (plus the District of Columbia) are considered two-party consent states, where the party attempting to enter the tape-recorded statement into evidence must show that each party consented to the recording. The two-party consent states are California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, Pennsylvania, and Washington. In the District of Columbia as well, at least one party must consent to a recording for it to be admissible as evidence.
Relevant Court Cases and Precedents
American courts have long been faced with the evidentiary issues posed by the use of sound recordings of conversations in litigation. In 1961, the Board of Appeals of the U.S. Patent and Trademark Office issued an opinion (Ex parte Zuniga, 1961 C.D. 43, 190 USPQ 170 (Bd. Pat.. App. 1961)) which stated that ordinarily, "The explanation of the method of making a tape recording of witnesses’ statements, the equipment employed, the arrangements made, the instructions given to the witnesses and the transcript of the tapes would constitute sufficient substantiation." The General Electric Co. case, General Electric Co. v. C.A.L. Electronics, Inc.; U.S. Court of Appeals, Federal Circuit; 955 F.2d 30 (Fed. Cir. 1992) (July 1, 1992) further underscores the serious effort necessary to ensure admissibility. In that case, an expert attorney witness attempted to introduce a tape recording as evidence of the true meaning of a patent claim. The district court excluded the tape as inadmissible. The Court of Appeals for the Federal Circuit upheld the action and said: "Before the trial court admitted the tape into evidence, it required GE . . . to lay a proper foundation to establish the reliability and accuracy of the recording here. The trade secret concerns were especially relevant because Alanco’s employees were aware that the tape was being made." Fed. Cir. holds GE tape in patent infringement action was properly excluded. The Federal Rules of Evidence must also be considered. Rule 901, for example, states in relevant part: "(a) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence, sufficient to support a finding, that the matter is what its proponent claims." In a recent federal criminal case, it was ruled that sound recordings of defendant’s telephone calls to his co-defendant conducted by governmental agents were admissible under Rule 901. Prior to admission, the recordings were properly authenticated through testimony from the investigator who had been involved in the investigation of the case and was present when the calls were actually recorded.
Challenges and Controversies
While voice recording has made a significant impact in the legal industry, especially in family law and criminal cases, their use in court has not been without challenges and controversies. One of the most common issues is the question of authenticity. If the voice on the recording cannot be definitively matched to the individual in question, the evidence may be deemed inadmissible. Another issue is the possibility of tampering or editing of the recording. Even though such tampering can be detected through forensic analysis, the potential for manipulation means that all parties must be given full access to the recording for cross-examination and other forms of scrutiny. Finally, some commentators have argued that voice recordings can introduce bias into the legal process. For example, the inflection of the speaker , which might communicate something different than the words themselves, can be lost when using only an audio recording. Additionally, the listener’s perception of the speaker’s tone of voice can influence how the evidence is interpreted.
Despite these challenges, the use of voice recordings in court is likely to continue to grow in the future as technology continues to improve, and their use in other areas of law is likely to rise as well. The current legal framework in the United States prohibits warrantless recording of conversations that people expect to be free from observation or surveillance. In other words, recording in a movie theater is a no-go. However, for recorded conversations that land outside of that barrier, there are a host of upcoming court cases that aim to clarify current laws surrounding their admissibility.
Best Practices for Leveraging Voice Recordings As Evidence
When it comes to the use of voice recordings as evidence, there are a number of best practices that should be followed to ensure that they are as credible and effective as possible. For starters, anyone who plans to use a voice recording as a piece of evidence in a legal proceeding must obtain permission from the person being recorded to do so. This might not be an issue in a one-on-one phone call, but if a phone call includes multiple people, you might need to ask everyone involved to sign off on the recording beforehand, or if the call is being recorded surreptitiously (which is illegal in many places), you might want to consider not recording the call at all—unless you receive consent from all involved parties. Even if you have permission to record, you should tell the person on the other end of the line that you’re recording the conversation. If someone knows they’re being recorded, they might not be so likely to run their mouth the way they normally would. It’s a good practice to have an official policy at your business that requires anyone using a recording device to disclose that they are doing so before speaking into it. There are also limitations on the types of calls that can be recorded and later used in court. For example, there may be laws in place that require both parties to be in the same state/country for the recording to be admitted. Even if it is possible in your particular jurisdiction to record without the consent of both parties, this might not be the best choice if you have any concerns about whether your recording will be valid in the first place. Before using a recording as evidence, ensure that the device you’re using to record provides a clean sound without any distortion. If the voice being recorded is distorted or cut out at times, the recording might be deemed as unreliable, and thus might not be allowed as evidence. Finally, make sure you back up your voice recordings even if you’re 100 percent sure it’s going to be easy to find again. Computer hard drives crash, memory cards become corrupt, and CDs get ruined. You can never be overprepared when it comes to voice recordings, but you can definitely be underprepared.
Future Considerations for Digital Evidence
The examination of emerging trends in digital evidence, particularly those affecting the admissibility of voice recordings at trials, demonstrates the ongoing evolution of evidence law in the age of technology. We are likely to see several changes in this area that will have an impact.
Greater reliance on digital evidence: Courts have become increasingly comfortable with digital evidence, and the number of cases using such evidence has increased. This trend is not likely to reverse anytime soon, and it indicates that as technology continues to develop, courts may become even more permissive in their standards for the admissibility of digital evidence.
More sophisticated technical evidence: Courtrooms are witnessing a substantial increase in the use of complex technical evidence in litigation. Cases previously closed after a few simple conversations are now being reexamined and reargued based on sophisticated digital evidence. This suggests that more cases will ultimately rely on such evidence in the future.
Stepping up requirements for authentication: In recent years , courts have been more likely to rule that a party does not need extensive proof of authenticity to admit digital recordings into evidence and may instead rely on expert witnesses to do so. Despite this trend, certain courts are still requiring rigorous and substantial proof, and that demonstrates that this issue will continue to be vigorously litigated before courts.
Expansion of what constitutes authenticated evidence: Several courts have ruled that recordings may be authenticated based on circumstantial evidence alone, such as how the evidence was retrieved and whether the party offering it has an adequate opportunity to review it. This trend could potentially expand the types of evidence that may be admitted, which could affect the admissibility of recordings and other digital evidence at trial.
Increased challenges to the qualifications of technical experts: A 2018 case demonstrated that parties are likely to heavily challenge expert witnesses regarding their qualifications in order to argue that the expert is unqualified to testify with regard to voice recording evidence. As this trend continues, the most qualified experts will need to remain even more vigilant to ensure they are not challenged on their qualifications.