4.3Audiotaped Evidence

The admissibility of audiotaped evidence, which includes 911 tapes, concerns three issues that commonly arise when such evidence is introduced at trial:

•Authentication (MRE 901).

•Hearsay objections and exceptions (MRE 801-MRE 807).

•Relevancy questions (MRE 401 and MRE 403).

A.Authentication

Authentication of audiotaped evidence is governed by MRE 901(a), which states:

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what its proponent claims it is.”

“[C]hallenges to the authenticity of evidence involve two related, but distinct, questions. The first question is whether the evidence has been authenticated—whether there is sufficient reason to believe that the evidence is what its proponent claims for purposes of admission into evidence. The second question is whether the evidence is actually authentic or genuine—whether the evidence is, in fact, what its proponent claims for purposes of evidentiary weight and reliability.” Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 154 (2017).

The first question, whether the evidence has been authenticated, “is reserved solely for the trial judge.” Mitchell, 321 Mich App at 154. The proponent of the evidence bears the burden of presenting evidence “sufficient to support a finding that the matter in question is what its proponent claims.” Id. at 155 (quotation marks and citation omitted). The proponent is not required “to sustain this burden in any particular fashion[,]” and “evidence supporting authentication may be direct or circumstantial and need not be free of all doubt.” Id. at 155. The proponent is required “only to make a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be.” Id. at 155. “Once the proponent of the evidence has made the prima facie showing, the evidence is authenticated under MRE 901(a) and may be submitted to the jury. Mitchell, 321 Mich App at 155. Authentication may be opposed “by arguing that a reasonable juror could not conclude that the proffered evidence is what the proponent claims it to be[;]” however, “this argument must be made on the basis of the proponent’s proffer; the opponent may not present evidence in denial of the genuineness or relevance of the evidence at the authentication stage.” Id. at 155.

“[T]he second question—the weight or reliability (if any) given to the evidence—is reserved solely to the fact-finder[.]” Mitchell, 321 Mich App at 156. “When a bona fide dispute regarding the genuineness of evidence is presented, that issue is for the jury, not the trial court.” Id. at 156. “Accordingly, the parties may submit evidence and argument, pro and con, to the jury regarding whether the authenticated evidence is, in fact, genuine and reliable.” Id. at 156.

MRE 901(b)(1)-(10) provide a nonexhaustive list of examples of evidence that satisfies the authentication or identification requirement of MRE 901(a).

“[A] tape ordinarily may be authenticated by having a knowledgeable witness identify the voices on the tape.” People v Berkey, 437 Mich 40, 46, 50, 52 (1991) (by identifying the voices on audiotaped recordings, the victim’s neighbor authenticated audiotape recordings that contained conversations between the victim and the defendant).

B.Hearsay Objections to Audiotaped Evidence

In some cases, information on an audiotape does not constitute hearsay, either because the statement was not offered to prove the truth of the matter asserted or because the information was not a statement. See City of Westland v Okopski, 208 Mich App 66, 77 (1994) (admission of a tape-recorded 911 call was not prohibited by the hearsay rule because it was offered to show why the police responded rather than to prove the truth of the matter asserted); People v Slaton, 135 Mich App 328, 335 (1984) (background noises in a 911 tape were not statements and thus did not constitute hearsay).

In cases where audiotaped evidence falls within the definition of hearsay, Michigan appellate courts have upheld the admission of 911 tapes under the present sense impression, excited utterance, and dying declaration exceptions to the hearsay rule.¹ See People v Hendrickson, 459 Mich 229 (1998) (911 tape admitted as present sense impression); People v Siler, 171 Mich App 246, 251-253 (1988), superseded on other grounds by People v Orr, 275 Mich App 587, 594 n 13 (2007)² (911 tape admitted as dying declaration); Slaton, 135 Mich App at 334-335 (edited 911 tape admitted as present sense impression and excited utterance).

C.Relevance

A brief discussion of relevant evidence is contained in this subsection. For a detailed discussion, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 2.

“Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.” MRE 401.

Generally, relevant evidence is admissible. MRE 402. However, exceptions may exist in the federal and state constitutions, the Michigan Rules of Evidence, and the Michigan Court Rules. See id. For example, MRE 403 sets out exceptions to this general rule:

“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

“Irrelevant evidence is not admissible.” MRE 402.