Monday, August 18, 2014
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.
It's important to note, however, that Rule 901(B)(6) is a fallback provision, as is demonstrated by the recent opinion of the Court of Appeals of Ohio, Second District, in State v. Burton, 2014 WL 4049820 (Ohio App. 2 Dist. 2014).
In Burton, Joseph Burton was charged with four counts of aggravated drug possession and one count of failure to verify his address. These charges came after a bag containing marijuana was found in a car belonging to Lindsey Daniels, Burton's ex-girlfriend. Daniels claimed that the drugs belonged to Burton and began participating with the police.
Daniels spoke to Burton on the telephone and told him the drugs were "gone"” She pretended not to know what had happened to the bag and did not mention police involvement. Daniels subsequently recorded two additional phone calls from Burton. She did so by talking to him on a speaker phone while having [Wagner] Couch record the conversation using another phone. Daniels recognized the phone number calling her as Burton's. She also recognized Burton's voice on the calls. During the conversations, Burton told Daniels that "it was in the glove box and you know it" and asked why she would "leave it in there." He also accused Daniels or Couch of stealing "it" or "them." He told Daniels, "you'll be able to afford rent now," "why would you leave them in the car, why would you do this to me," "you shouldn't have left them in there, I told you that, I called you and told you they were in the car, from Jenn's phone," "if you don't find them, then I'm broke, I don't have a dime to my name without them," "now I have nothing," and "that was all my profit[.]" Daniels testified that the references to "it" and "them" were non-specific references to the bag of drugs. She explained that neither she nor Burton explicitly would mention drugs over the telephone. Police sergeant Jason Moore confirmed that, in his experience, people discussing drugs are unlikely to be specific in their conversations.
After Burton was convicted of the crimes charged, he appealed, claiming that the prosecution failed to properly authenticate the phone calls under Ohio Rule of Evidence 901(B)(6). The Court of Appeals, however, easily turned aside this argument, concluding that
Using telephone records is one way to authenticate a telephone conversation. Evid.R. 901(B)(6). Such authentication also can occur, however, through the testimony of a witness with knowledge or by voice identification. Evid.R. 901(B)(1) and (5). Here Daniels testified that the recordings of the two telephone calls were what she purported them to be. She explained how the recordings were made, she identified the phone number calling her as Burton's, and she testified that the recordings were accurate and complete. In addition, Daniels testified that she was familiar with Burton's voice and identified the voice on the recordings as his. We have no doubt that Daniels' testimony satisfied the authentication standards of Evid.R. 901.
In other words, a party only need to rely on Rule 901(B)(6) if a witness is unfamiliar with the voice on the other end of the telephone line (e.g., Wendy calls up Dan to set up a blind date). If a witness is familiar with the voice on the other end of the line, the witness can authenticate the phone call (e.g., Wendy calls up Dan to set up a second date after a successful first date).