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Univ. of South Carolina School of Law

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Thursday, January 6, 2011

Caller ID: Court Of Appeals Of Texas Allows For Telephone Conversation Authentication, But Not Under Rule 901(b)(6)

Like its federal counterpart, Texas Rule of Evidence 901(b)(6) 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:

(6) Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:

(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or

(B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

As the above preliminary language and the recent opinion of the Court of Appeals of Texas, Houston, in Mosley v. State, 2010 WL 5395655 (Tex.App.-Hous. [1 Dist.] 2010), make clear, however, telephone conversations can be authenticated even if all of the elements of Rule 901(b)(6) are not satisfied. 

In Mosley, Shanell Monique Mosley was convicted of abandoning two children. This alleged abandonment occurred while Mosley was in Africa, with Mosley claiming that she thought that her sister Shaqual was going to come from Louisiana to watch her children in Houston while she was in Africa.

At trial, Shaqual testified that she did not remember telling Mosley's friend, Shawn Harrison, that Mosley knew Shaqual was not coming to Houston on December 31. The prosecution thereafter called A. Samuy, a CPS investigator employed by the Department of Family and Protective Services.

Samuy testified that Harrison dialed a number, put the call on speakerphone, and a person answered saying, "This is Shaqual." Mosley then specifically objected as follows, "Objection, Your Honor, unless she [Samuy] can authenticate Shaqual's voice I would object to her testifying to someone she doesn't know." The trial court immediately overruled the objection. Samuy then testified that the person on the phone said the following:
Monique knew I wasn't coming to Houston before she got on the plane because she didn't send me any money. She didn't send the bus money for me and my kids to come. She knew before she got on that plane that I wasn't going to be - I couldn't come to Houston. I don't know why she got on that plane.
After she was convicted, Mosley appealed, claiming that the trial court erred in overruling her authentication objection to Samuy's testimony about the telephone conversation. The Court of Appeals of Texas, Houston, disagreed, finding that
While the State did not match all the elements of the illustration in Rule 901(b)(6)(A), Rule 901(b) specifically provides that the illustrations do not limit the general provision in Rule 901(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 in question is what its proponent claims." Although the State did not show that the call “was made to the number assigned at the time by the telephone company to a particular person,” that alone does not foreclose authentication on other grounds.
Alternate grounds to authenticate the identity of a telephone caller include self-identification of the caller coupled with additional evidence such as the context and timing of the telephone call, the contents of the statement challenged, internal patterns and other distinctive characteristics, and disclosure of knowledge and facts known peculiarly to the caller....Here, Samuy testified that the person on the phone identified herself as Shaqual and continued to disclose information that was very specific to circumstances previously described by Shaqual and Mosley.
We hold that the trial court did not abuse its discretion in admitting Samuy's testimony because there was sufficient evidence before the trial court to support a finding that person on the telephone was Shaqual.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/01/authenticate-shanell-monique-mosley-appellant-v-the-state-of-texas-sw3d-2010-wl-5395655texapp-hous-1-dist.html

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