Authenticating Recorded Conversations

Seventh Circuit highlights two options to authenticating recorded conversations and voice identification, in a case where the recordings were obtained by a cooperating witness and provided to law enforcement, in United States v. Collins, _ F.3d _ (7th Cir. May 15, 2013) (No. 11-3098)

In authenticating recorded conversations, proponents have a couple of options to consider. The alternatives were recently reviewed by the Seventh Circuit.

In the case, defendant Collins was under investigation for cocaine trafficking. One individual, Pedro Flores, agreed to cooperate and provide recordings of his telephone discussions with the defendant. Law enforcement did not participate in any of the calls which were obtained and provided by the cooperating witness. At trial, three telephone recordings were admitted discussing “the cocaine-distribution scheme with the ‘speaker,’ including prices, quantities, quality of drugs, and the use of other people to distribute the goods.” Collins, _ F.3d at _.

The Seventh Circuit noted there were two ways to authenticate a recording and both were followed in the case: “(1) a chain of custody demonstrating the tapes are in the same condition as when they were recorded, or (2) testimony demonstrating the accuracy and trustworthiness of the tapes.” Collins, _ F.3d at _ (citing United States v. Thomas, 294 F.3d 899, 904 (7th Cir. 2002) (The authentication "standard can be established in two ways: a chain of custody showing that the tapes are in the same condition as when recorded, or other testimony to demonstrate the accuracy and trustworthiness of the evidence."); see United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006) ("It may do so by establishing the chain of custody or by offering testimony of an eyewitness that the recording accurately reflects the conversation he or she witnessed.")).

Chain Of Custody Option

Under the chain of custody method, two agents “testified at length regarding the tapes’ history and how” they were shipped from the agent meeting the cooperating witness in Guadalajara, Mexico to the second agent in Chicago. They explained their interactions with the cooperating witness including about their instructions for recording and delivering the recordings. The agents noted how the tapes were received, labeled and preserved and “that the tapes never left the government’s possession after the moment of receipt.” Collins, _ F.3d at _ (citing Thomas, 294 F.3d at 905 (“[I]f the tapes were in official custody at all times, a presumption arises that the tapes were handled properly.”)).

While the agents were not present when the recordings were made, this did not make the recordings inadmissible: “merely raising the possibility of tampering is not sufficient to render evidence inadmissible.” Collins, _ F.3d at _ (citing United States v. Wilson, 973 F.2d 577, 580 (7th Cir. 1992) (explaining that a defendant’s contention that certain tape recordings were not authentic because they did not remain “in the sole custody of the government” was meritless). Once the government shows that “reasonable precautions” were taken in obtaining the tapes, it did not have to “exclude all possibilities of tampering.” Collins, _ F.3d at _ (citing United States v. Moore, 425 F.3d 1061, 1071-72 (7th Cir. 2005); United States v. Fuentes, 563 F.2d 527, 532 (2d Cir. 1977) (“There is no requirement that the tapes be put in evidence through the person wearing the recorder, or for that matter, through a contemporaneous witness to the recorded conversations.”))). Any questions about potential defects in the chain of custody went to the weight of the evidence and not admissibility. Collins, _ F.3d at _ (citing United States v. Tatum, 548 F.3d 584, 587-88 (7th Cir. 2008) (“The government does not need to prove a ‘perfect’ chain of custody, and any gaps in the chain ‘go to the weight of the evidence and not its admissibility.’”) (quoting United States v. Scott, 19 F.3d 1238, 1245 (7th Cir. 1994)).

Circumstantial Evidence Method

Under the second approach, the circuit concluded that there was “ample circumstantial evidence supporting the tapes’ accuracy and trustworthiness” based on voice identification under FRE 901(b)(5). The rule, which does not have "a very high bar," allows for voice identification “based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” Collins, _ F.3d at _ (citing United States v. Mendiola, 707 F.3d 735, 740 (7th Cir. 2013) ("The bar for familiarity is not a high one. This court has held that hearing a defendant’s voice once during a court proceeding satisfies the minimal familiarity requirement.")).

Two agents were able to identify the defendant’s voice on the recordings after becoming familiar with the defendant’s voice. This included one agent who participated in a “forty-five minute interview” with the defendant and another agent who listened to more than 20 jailhouse recordings of the defendant. Other evidence supported the identification including the timestamp which matched the cell phone records of the cooperator’s cell phone by time, date, duration and area code.

The Collins case provides a useful overview of how recordings may be authenticated at trial.

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