Getting a recorded statement introduced in evidence

Elder law attorneys sometimes find themselves in various types of litigation ranging from guardianship cases, to probate, to Medicaid administrative hearings. For the most part, Elder law attorneys are not well versed in the rules of evidence and procedure because we spend most of our time doing estate planning, special needs planning, Medicaid planning and other related matters. So, when we become involved in litigation, it’s necessary to brush up on some of the rules trial lawyers use every day.

In litigation, hearing what someone actually said in a recorded conversation is critical. But how do you get the recording admitted into evidence. In Georgia this was first addressed in Steve M. Solomon, Jr., Inc. v Edgar, 92 Ga. App. 207 (1955). A party want to introduce a conversation recorded on a Dictaphone and, in 1955, the Court of Appeals said there were no Georgia decisions on this point. Looking to cases from other jurisdictions, the Georgia Court of Appeals stated that proper foundation must be laid before a recording could be played to a jury (or other fact finder). The Court said:

A proper foundation for their use must be laid as follows: (1) It must be shown that the mechanical transcription device was capable of taking testimony. (2) It must be shown that the operator of the device was competent to operate it. (3) The authenticity and correctness of the recording must be established. (4) It must be shown that changes, additions, or deletions have not been made. (5) The manner of preservation of the record must be shown. (6) Speakers must be identified. (7) It must be shown that the testimony elicited was freely and voluntarily made, without any kind of duress.

Some of the questions you would ask to lay proper foundation are:

1. Were you present for a conversation involving [Name of Speaker] on [Date]?
2. Approximately what time did this conversation take place?
3. Where were you located when this conversation occurred?
4. Who else was present or participating in that conversation?

Other questions which identify the speakers include:

1. Do you know [Name of other speaker(s)]? (Or whose voice do you recognize speaking on the recording?)
2. How long have you known them? (Or how did you become familiar with their voice?)
3. Have you spoken with them in person and/or over the phone prior to that day?
4. Approximately how many times have you heard their voice?
5. Are you able to recognize and identify their voice?

If you intend to introduce the recording as part of the record, then you begin by handing the recording and recording device to the witness, marking it as an exhibit and showing it to opposing counsel. Then:

1. I am handing you what has been marked as Plaintiff’s/State’s Exhibit [#]. Do you recognize what this is?
2. Have you had an opportunity to listen to this specific recording prior to testifying today?

Questions for the witness:

1. After listening to Exhibit [#], does it fairly, accurately, and completely depict the conversation you had with [Speaker] on [Date]? (or does the recording accurately reproduce the conversation that took place on that date?)
2. Has the recording been altered, edited, deleted, or doctored in any way to your knowledge?
3. What device did you use to make this recording?
4. Was that device in proper working order at the time the recording was made?

Georgia cases citing Solomon are listed here.

Be prepared for objections. Among those you will likely hear are (1) the best evidence rule and (2) hearsay.

Generally, O.C.G.A. § 24-10-1002 provides “To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.” However, O.C.G.A. § 24-10-1003 authorizes the introduction of duplicates unless a genuine question is raised as to the authenticity of the original, or a circumstance exists where it would be unfair to admit the duplicate in lieu of the original. Other exceptions are listed in O.C.G.A. § 24-10-1004. Where possible, this means you take the original recording device, which probably means a phone or audio recorder, and play the original file. If not then you must be ready to show how the duplicate is unaltered.

“Hearsay” means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. O.C.G.A. § 24-8-801(c).

If the recording is being offered includes adverse statements made by one of the parties in the litigation, then it is not subjection to a hearsay objection. O.C.G.A. § 24-8-801(d)(2) provides:

Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is:

(A) The party’s own statement, in either an individual or representative capacity;

(B) A statement of which the party has manifested an adoption or belief in its truth;

(C) A statement by a person authorized by the party to make a statement concerning the subject;

(D) A statement by the party’s agent or employee, but not including any agent of the state in a criminal proceeding, concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or

(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.

The contents of the statement shall be considered but shall not alone be sufficient to establish the declarant’s authority under subparagraph (C) of this paragraph, the agency or employment relationship and scope thereof under subparagraph (D) of this paragraph, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subparagraph (E) of this paragraph.

Georgia cases give Judges broad discretion to allow rebuttal evidence so in some cases, a recording could be admitted to show a witness lied.

Even if evidence is objected to and is not admitted, a proffer should be made to preserve the issue on appeal. In other words, have a copy of the recording or other evidence you want admitted, mark it as an exhibit and proffer it so it becomes part of the record. Request permission to make the proffer. Lay the foundation for the evidence you want to proffer. Mark the exhibit. Verify with the court reporter or other person making the record that is has been filed into the official record.