Can Audio Recordings Be Presented as Evidence in Court? The Legal Ramifications

Legal Requirements for Audio Recordings to be Allowed as Evidence

The legal standards governing the admissibility of audio recordings in court are generally centered around three main categories: consent, relevance, and authenticity. Depending on the jurisdiction and the nature of the case, the specific requirements may vary.
Consent is often a fundamental requirement for the admissibility of audio recordings. In many jurisdictions, if one party to a conversation is aware that it is being recorded, that may be sufficient for the recording to be admissible as evidence in court. This is sometimes referred to as "one-party consent." However, some states require the consent of all parties to the recorded communication, known as "two-party consent" or "all-party consent." Under such laws, secretly recorded conversations may be inadmissible unless they comply with exceptions, such as when the party doing the recording is doing so to obtain evidence of a crime.
Relevance is another critical standard for audio recording evidence. In order to be admissible, the recording must be relevant to the matter being proven in court. The judge will typically assess whether a reasonable factfinder could use the recording to establish a pertinent fact . If the recording fails this test, it may be inadmissible regardless of how it was obtained or how accurately it records the speaker.
Finally, authenticity is also a key consideration. The party introducing the recording into evidence must be able to establish that it is what they claim it to be. Under most legal systems, this requires the testimony of a witness who was present when the recording was made or has personal knowledge of its contents, for example, an eyewitness who recognizes the voice on the recording. If an adequate foundation for authenticity is not established, it can render even technically accurate recordings inadmissible.
Aside from these general requirements, some courts may additionally require that recordings satisfy specific evidentiary rules or standards, such as the "best evidence" rule, which states that the original source of a recording must be used in court and that any copies are only admissible if they meet certain accuracy and integrity requirements. Other admissibility issues may include balancing the probative value of the recording against the risk of prejudice to a fair trial, and technical standards such as sampling rate and bit depth for digital audio files.

Federal v. State Laws

While federal laws authorizing audio recording in the workplace bind all states, each state has its own unwritten or written rules or laws that govern recording conversations in the workplace. Generally speaking, most states allow recordings by one or both parties that are taking part of the conversation but some states have laws that expressly require all parties to consent to the taping in order for it to be considered legal.
Several states that have statutes with all-party consent requirements include California, Connecticut, Indiana, Maryland, Massachusetts, Montana, Nebraska, New Hampshire, Oregon, Pennsylvania, Vermont, and Washington. These states have specific provisions or statutes that require all parties to the conversation consent to the recording for it to be lawful.
Then there are also a few state which don’t list their laws or rules on this matter. They don’t have either provisions or case law on the books pertaining to tape recording. Utah is the only state currently on this list.

Consent: One Party vs. Two Party States

The legality of recorded audio in court may also depend upon the type of consent laws in the state where the recordings were made. Consent is divided into two categories: One-Party consent and Two-Party consent. One-Party consent allows a person to record a conversation as long as they are a party to the conversation. They do not need to inform the other party. A Two-Party consent state means that both parties must agree that they want to have the conversation recorded. If they do not, attempting to use the recording in court could have repercussions. Circumstances under which the recording took place may be scrutinized. For example, it would not be legal for you to use a recording of a private conversation between you and another person if it were recorded without knowledge of the other party simply because it would be an invasion of privacy. On the other hand, if you and the other person were eavesdropping on someone else to get them saying something that could be used against them, that circumvention of privacy would likely not result in any consequences.

Authenticating Audio Recordings

In order to be admissible in court, proffered audio recordings must be authenticated. This requires sufficient evidence to show that the recording is what its proponent claims, and the recording is what its proponent purports it to be. The Federal Rules of Evidence provide that the standard for authenticity is met if evidence sufficient to support a finding that the matter in question is what its proponent claims is introduced (Fed. R. Evid. 901(a)). So, in a courtroom, an individual who has personal knowledge about the authenticity of the audio recording (either the original or a copy of it), would typically testify about the circumstances surrounding the recording, such as:
As part of an evidentiary objection, a judge may exclude proffered audio recordings where proper authentication evidence is missing. While the rules of evidence require the moving party to provide evidence supporting authenticity, they do not require the moving party to provide evidence showing the entire chain of custody of the recording. That is, the moving party is not required to show "the absence of possibility of tampering" at each step in the chain of custody.
Audio recordings that are not a product of electronic surveillance or a .wav file are typically presented to the judge or jury as a copy or copy/proxy. The process for authenticating copies of audio recordings is more complex than authenticating an original recording. These authentication procedures are further complicated by various data corrosion strategies used by discovery vendors to optimize audio recordings in electronic database management systems (EDMS) and litigation folder management systems (LFMS) (e.g., "digital fingerprint, watermarks, checksum, keyword hashing, de-duplication, etc."). To authenticate copy/proxies of audio recordings, the moving party will typically provide expert witness testimony. Judicial notice is often allowed where the authenticity of an audio recording is established beyond a reasonable doubt, based on physical evidence and the testimony of an expert.

Relevant Cases

Admissibility of audio recordings in court has been contentious for decades, with the courts developing a body of rulings that illuminate specific considerations. For example, in Smith v. Clark’s Supermarket of Commerce, Inc. 196 N.W. 2d 628 (1972) the plaintiff attempted to introduce an allegedly concealed store surveillance audio recording of a slip-and-fall incident, but was barred by the trial court from doing so on the grounds that there was insufficient evidence to show the record was taped under such circumstances. In reversing the trial court, the appellate court noted that:
The object of discovery is to ascertain all material facts concerning a pending cause of action; it is not confined to those evidentiary matters relating to the cause of action. The trial judge, in refusing to permit discovery of the tape, construed the order as limiting its scope to evidentiary matters. We disagree and conclude the recorded conversation is relevant to the subject matter of the pending action. It reveals the surveillance tape was concealed from the plaintiff’s view except when she entered certain locations in the market. The purpose of the surveillance videotape was to provide insurance coverage for defendant from fraudulent claims such as the one asserted here.
Although one of the issues in Smith was the permissibility of production of the recording, the plaintiff and the Lower Court failed to address the admissibility issue regarding the substance of what was contained on the tape . In another case, the Minnesota Supreme Court further expanded on what was subsequently determined later in the same case to be an "automatic" admissibility of tape recordings, if they were not "unauthentic."
In Newcome v. Josephson 397 N.W. 2d 671 (1986), the Minnesota Supreme Court held that while the decision of whether to permit the use of non-verbatim tapes turned on the facts and circumstances surrounding their production and the reliability factor was within the sound discretion of the trial court, the "bare assertion that [the tape was] accurate" sufficed under the "Kennedy standard" to make the tape admissible. Under the "Kennedy standard," which arose out of the Kennedy v. Byers 154 Minn. 163, 190 N.W. 133 (1922) court case, the Minnesota Supreme Court held that a non-verbatim tape may be admitted into evidence providing the party seeking to admit the tape can demonstrate (1) the availability of the witness, (2) the witness’ ability to testify about the relevant parts of the tape, and (3) the admissibility of that witness’ testimony. The Newcome court stated "Judge Kennedy, in the well known case, . . . stated the rule of admissibility of non-verbatim tapes in these terms: ‘where all the material evidence can be made available by other witnesses whose testimony is competent and unimpeached, a transcript of a tape recording may be rejected.’ This rule, we believe, is now firmly established in this state."

Privacy Considerations & Ethical Implications

The utilization of audio recordings in court proceedings inevitably raises concerns surrounding privacy and ethics. These concerns are particularly pertinent in cases where the audio recording contains sensitive or confidential information regarding individuals. One must consider whether the use of such recordings implicates any reasonable expectation of privacy that may have existed between the recorded parties, and if so, whether such an expectation was counterweighed by a compelling interest in the truth-seeking mandate of the courts.
When making determinations regarding admissibility, judges adhere to certain rules and precedents regarding privacy concerns. For instance, any recording of an oral conversation is generally subject to the rule against hearsay or the "hearsay rule," which disallows the admission of an out-of-court statement into evidence unless it falls within an exception to the hearsay rule. However, if a third party other than the person making the statement is "eavesdropping" or interfering with the communication, it can be argued that the privacy expectation was not reasonable and therefore did not exist. This may be true even if the other party is a member or agent of law enforcement engaged in what may be considered eavesdropping. The expectation of a heightened level of secrecy may be disregarded because the defendant likely possessed a higher expectation of privacy with regard to the third party, to whom the conversation was originally directed.
The issue of whether a third party is considered to be "eavesdropping" and whether reasonable expectations of privacy are therefore properly disregarded depends on whether the third party is intentionally trespassing the privacy rights of the target(s) of the communication, or whether the third party is lawfully engaged in monitoring such communication. In these instances, the individual being recorded must have had prior knowledge that the third party was transparently present and monitoring the communication when it occurred. Therefore, the third party is usually prohibited from using such information in court.

How to Collect Audio Recordings

Before you hit the record button on your device, it’s essential that you are aware of the laws regarding recorded conversations in your state. There is a significant difference between one party consent and two-party consent when it comes to recording phone calls or in-person conversations. If you would like to record a conversation with someone for personal convenience and don’t plan on using it as evidence in court, then you’ll only need one-party consent. Many state laws allow you to record a conversation as long as you are a participating party. Be aware that federal law requires consent from at least one party involved in the conversation. If you are considering using recordings in court, it’s always best to speak with an attorney first. Michigan is considered a one-party consent state and does not require permission to record if you intend on keeping the audio private and not using it in court. However, if you think you may need to use the audio in court, either now or in the near future, it’s considered prudent to ask for permission from the other party beforehand. It can come across as an invasion of privacy to secretly record someone and then attempt to introduce it as evidence later. If you reach an agreement to become involved in a lawsuit, determine at that time if anyone is opposed to having conversations recorded. Sometimes individuals may want to have the other party’s conversations with a third-party witness available if the other party will not agree to the witness serving as the plaintiff’s representative . Again, talk to your attorney if you aren’t certain whether you’ll need the audio evidence in a lawsuit. Once you know you have the legal right to record your conversation, ensure that you have enough memory on your phone or recording device to capture the entire conversation. Additionally, make sure you have good sound quality. Many people who don’t have formal experience with audio recording may not understand that the physical proximity of the microphones on recording devices is crucial to preserving dialogue. Before the parties involved in the conversation enter the room where you will collect audio evidence, try recording a few seconds of background noise to ensure the device is functioning as expected and that you have the opportunity to troubleshoot any problems. When preparing for trial and getting ready to bring in evidence, you’ll want to listen to the recording first to ensure it is what you expect and that there are no issues with echoes, temperature, or unintelligible voices that will be hard to decipher. Take time to find the relevant parts of the conversation that you’ll use in court and edit the audio appropriately, removing superfluous information, correcting for quality issues, and strictly adhering to the evidence chain of custody protocol. Not all audio-recorded information will serve as admissible evidence in court. For instance, improperly recorded phone calls and interviews will not be accepted by the judge or jury. You may need to consider using other forms of evidence in conjunction with the recorded audio evidence.