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Authenticating 911 Calls in Trial

A 911 recording presents multiple evidentiary issues that must be crossed. First, the recording has to be authenticated. Under SCRE 901(b), the rules provide a non-exhaustive list of methods to authenticate a 911 call. These examples include voice identification and telephone conversations. Because this is not a set list, the court may look to other circumstantial evidence to determine whether or not the 911 call is what it claims to be. A 911 call may also be authenticated under S.C. Code Ann. § 19-5-520.[1] This code section mimics Federal Rule of Evidence 902(11) which holds that if a record meets the exception of the business record exception to hearsay (SCRE 803(6)), then a qualified custodian of that record may provide an affidavit stating that it meets the business record requirements. The proponent of this has to give proper notice to the opposing party. An objection could be raised about having a copy of the 911 recording, thus invoking the best evidence rule. But this will likely not be an issue even if it is a duplicate if the copy is properly authenticated and thus permissible under SCRE 1003.

After the 911 call has been authenticated, the court will need to determine if the statements on the call are testimonial. If they are testimonial, then the declarant would have to testify or opposing counsel would need an opportunity to cross-examine the declarant.

If the statements are not testimonial, then they would still need to either be considered nonhearsay (not proved for the truth, admission by part opponent, etc.) or that they fit into an exception to hearsay.

[1] SECTION 19-5-520. Certified business records. In addition to those matters provided by Rule 902, South Carolina Rules of Evidence, extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (A) The original or a copy of a domestic record that meets the requirements of Rule 803(6), South Carolina Rules of Evidence, as shown by a certification of the custodian or another qualified person that complies with a state statute or a court rule. Before the trial or hearing, the proponent shall give an adverse party reasonable written notice of the intent to offer the record and shall make the record and certification available for inspection so that the party has a fair opportunity to challenge the record. (B) In a civil case, the original or a copy of a foreign record that is certified by the custodian or another qualified person and otherwise meets the requirements of subsection (A), modified as follows: the certification, rather than complying with a state statute or court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the jurisdiction where the certification is signed. The proponent also shall meet the notice requirements of subsection (A).

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