Wednesday, December 11, 2013
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
There are many questions about how readily courts should apply Rule of Evidence 1003(1) to exclude duplicates. In fact, I raised many of them in this article. But seemingly everyone agrees that the proponent of a duplicate must first authenticate the original. And this requirement was a problem for the prosecution in State v. Yoeun, 2013 WL 6152162 (Minn.App. 2013), even in the absence of an objection by the defendant.
In Yoeun, Stanaley Youen was convicted of attempted second-degree intentional murder, first-degree assault, and second-degree assault. At trial, the prosecution had introduced into evidence a duplicate recording of a phone conversation between Youen and A.A., the girlfriend of one of the victims (J.J.).
The conversation was originally recorded on a cell phone by A.A.'s aunt and then brought to the police station where an officer recorded the recording. At trial, two police officers were permitted to testify to what they heard on the recording before it was played to the jury. A police investigator testified:
I did hear [A.A.] ask him what did he want, he just shot the guy that she was with. [Objection to hearsay overruled as admission of defendant] I could make out that [A.A.] had asked Stanaley—she said is this Stanaley? Stanaley said, yeah. And then I heard [A.A.] ask him what do you want? You just shot the guy that I'm with and then I hear Stanaley just say exactly.
Another officer also testified to what he heard on the tape after listening to it several times and getting A.A.'s assistance in deciphering the call:
[A.A.] contacting the Defendant, asking if it's Stanaley, him indicating that it was him that she was speaking with, and then the conversation they had where she questioned him about, you know, why he did what he did. He asked, what do you mean? She said, you know, it's all over the fact that you had shot [J.J.]. [J.J.] is a nickname, if you will, for the victim in this case, [J.J.]. And the Defendant made some comment that that is what I live by. She further indicates that I don't get it, you know, why did you shoot the man that I'm with? The Defendant's response was, exactly.
After he was convicted, Youen appealed, claiming that the prosecution failed to authenticate the original cell phone recording pursuant to the seven factor test that applies to such evidence:
(1) that the recording device was capable of taking testimony; (2) that the operator of the device was competent; (3) establishment of the authenticity or correctness of the recording; (4) that changes, additions, and deletions have not been made; (5) the manner of the preservation of the recording; (6) identification of the speakers; and (7) that the testimony elicited was voluntarily made without inducement.
The Court of Appeals of Minnesota agreed, concluding that
Here, the state attempted to lay foundation for the recording through the testimony of an officer who made a second recording of the call when A.A. and her aunt brought the original to the police station. That officer testified generally that the duplicate recording was a copy of what he heard on the original, but there was no testimony showing that the cell phone used to make the recording was reliable, or that the recording had not been altered before being brought to the police station. Although the caller identified himself as “Stanaley” on the recording, the identity of the caller only fulfills one of the Furlev factors. A.A., the other party to the call, and her aunt, the individual who recorded the call, did not testify. Accordingly, there was no testimony regarding the accuracy, correctness, or reliability of the original recording....[A]dmission of the duplicate recording without proper authentication of the original recording was plain error.