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Univ. of South Carolina School of Law

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Wednesday, June 9, 2010

Rescue 911: Court Of Appeals Of Indiana Finds Caller's Testimony Sufficient To Authenticate 911 Recording

Like its federal counterpart, Indiana Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, let's say that a declarant calls 911 after witnessing an alleged battery. A defendant is now on trial facing charges of battery, and the prosecution wants to admit the 911 recording into evidence. Who must authenticate the recording? The declarant? Someone from 911 or the police department? Both? According to the recent opinion of the Court of Appeals of Indiana in Ulshafer v. State, 2010 WL 2224618 (Ind.App. 2010), just the testimony of the declarant is sufficient.

In Ulshafer,

Adam Durham, Sr., and Nancy Brumley lived together in a house in Indianapolis. Also living at the house was their teenage son, Adam, Jr., Brumley's sister, Adeline Blankenship, and Blankenship's boyfriend, Johnny Maxey. Blankenship had also recently been in a relationship with [Ricky] Ulshafer.

On the morning of December 6, 2008,Ulshafer went to Durham and Brumley's home and began knocking on the doors and windows. Eventually, Adam, Jr., answered the door, and Ulshafer asked to speak to Blankenship. While Blankenship and Ulshafer talked on the porch, Adam, Jr., watched them from the side of the house. After learning that Blankenship had spent the night there with Maxey, Ulshafer called her a "lying, cheating, whore" and asked her to return his house keys and a ring he had recently given her....

Brumley and Maxey were standing just inside the house listening to Ulshafer and Blankenship, and they overheard Ulshafer say that he was going to slit Blankenship's throat and let her die. Maxey then went out onto the porch, and he and Ulshafer began arguing. Eventually, they agreed to fight in front of the house.

The two men then engaged in a fist fight. Soon, however, Ulshafer retrieved a knife and began stabbing Maxey with it repeatedly while saying "die, die, die."...Adam, Sr., then came outside and was able to break up the fight. Adam, Jr ., made a 911 call to report the incident; Brumley took over the conversation about halfway into the call. Police apprehended Ulshafer shortly thereafter.

Ulshafer was later charged with felony battery, and, at trial, the prosecution introduced the 911 recording into evidence after "Adam, Jr., himself testified that he had listened to the 911 recording and verified that it was a recording of the call he had made." 

After he was convicted, Ulshafer appealed, claiming, inter alia, that the 911 recording was improperly authenticated. The Court of Appeals of Indiana disagreed, concluding that there was proper authentication under Indiana Rule of Evidence 901(b)(1), which allows for authentication through the "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." According to the court, Adam Jr. had personal knowledge of the 911 call that he made and could thus authenticate the recording.

The court also rejected Ulshafer's argument that someone from 911 or the police department also had to authenticate the recording, finding that Adam Jr. was perfectly capable of authenticating it. My review of precedent from other states reveals that other courts agree. For instance, in State v. Elliott, 2005 WL 352199 (Wash.App. Div. 2 2005), the Court of Appeals of Washington, Division 2, noted:

Steven contends that a 911 recording must be authenticated by a 911 emergency dispatch center employee and cannot be authenticated, as the State did in this case, by the individual calling 911. We rejected this argument in State v. Jackson, 113 Wn.App. 762, 769, 54 P.3d 739 (2002).

There, we held that 'a proponent can authenticate a tape recording with conversation on it by calling a witness who has personal knowledge of the original conversation and the contents of the tape; who testifies that the tape accurately portrays the original conversation; and who identifies each relevant voice heard on the tape.' Jackson, 113 Wn.App. at 769. Steven does not dispute that these elements were met and that his trial counsel conceded below that under Jackson, the 911 tape had been authenticated. Steven's authentication claim is without merit.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/06/901b1-911--ulshafer-v-stateslip-copy-2010-wl-2224618-tableindapp2010.html

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