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Univ. of South Carolina School of Law

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Monday, January 17, 2011

Rescue 911: Court Of Appeals Of Minnesota Finds 911 Call Authenticated, But Not Under Rule 901(b)(5)

Like its federal counterpart, Minnesota 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.

And, like its federal counterpart, Minnesota Rule of Evidence 901(b)(5) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:...

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

As the above language and the recent opinion of the Court of Appeals of Minnesota in Adams v. State, 2011 WL 9162 (Minn.App. 2011), however, Rule 901(b)(5) is merely an illustration, and voice can be authenticated through other means as long as the standard set forth in Rule 901(a) is satisfied.

In Adams,  Michael Adams was convicted of burglary in the second degree. At trial, the prosecution established that

a man living in St. Paul returned to his apartment and observed that his door was partially broken and ajar. The victim observed two men, one of whom he identified as [Michael] Adams, run out of the apartment and down the stairwell. The victim followed the men outside and called 911 once he was in the parking lot. The victim testified that while he was speaking to the 911 dispatcher, Adams pulled out a knife and threatened him.

The 911 dispatcher testified at trial and authenticated the recording of the call. Adams's trial counsel objected to the introduction of the recording as hearsay, but not for lack of authentication. The district court overruled the hearsay objection and allowed the jury to hear the 911 call.

The recording captures a conversation between the 911 dispatcher and the victim. The victim reports that between two and four black men broke into his apartment and that one of the men is threatening him with a knife "right now." The victim also states that he does not know the man's name, but he knows that the man lives in his building.

A third person can be heard in the background, but it is difficult to make out what that person is saying. But at one point, the third person clearly says "Mother f-----. (Inaudible.) Mother f-----." No one specifically identified the third person's voice as Adams's on the recording or at trial.

After Adams was convicted, he appealed, claiming that the 911 call was improperly authenticated "because no witness specifically identified the third person's voice on the 911 call as his, the recording was inadmissible for lack of authentication." The Court of Appeals of Minnesota disagreed, noting that

Our decision in State v. Washington, 725 N.W.2d 125 (Minn.App .2007), review denied (Minn. Mar. 20, 2007), is instructive. In Washington, the appellant was convicted of two counts of fifth-degree domestic assault based in part on a 911 call made by the victim, who did not testify....The appellant objected to the admission of the 911 call on several grounds, including that no one had authenticated the voice on the recording as that of the victim....The district court allowed the recording into evidence....We affirmed, concluding that the district court had not abused its discretion in admitting the 911 call because there was other testimony indicating that the victim had placed the 911 call.

The court then applied Washington to the case before it and concluded that

Here, the testimony authenticating the 911 call is even stronger than in Washington because the victim testified to the events captured on the 911 call....The victim testified that Adams pulled out a knife and threatened him while he was speaking to the 911 dispatcher; at least one other witness corroborated the victim's testimony. This testimony is adequate to establish that the third person on the 911 call was Adams. Thus, Adams cannot establish that the district court committed error-let alone plain error-by admitting the 911 call.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/01/901b-michael-adams-petitioner-appellant-v-state-of-minnesota-respondent-nw2d-2011-wl-9162minnapp2011.html

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