Electronic Audio Recordings Presented or Offered into Evidence

ELECTRONIC AUDIO RECORDINGS PRESENTED OR OFFERED INTO EVIDENCE

A. Admissibility of Electronic Audio Recordings Into Evidence at Hearing

1. Prior Court Hearing

a. The official audio recording of a prior court hearing may be obtained by

contacting the clerk’s office and paying the required fee. Official audio

recordings obtained from the clerk’s office are self-authenticating under Federal

Rule of Evidence 9002 when accompanied by a written certification by the clerk

that the audio recording is a true copy of the official record.

b. Audio files on the court’s docket (a/k/a CourtSpeak Recordings) are not official

audio recordings because such recordings are single-channel recordings and not

multi-channel recordings. Nevertheless, for purposes of evidentiary

admissibility, a party seeking to introduce a CourtSpeak audio file into evidence

may do so by properly authenticating the recording. A CourtSpeak audio

recording may be self-authenticating if the audio recording is certified to be a

correct copy by the clerk’s office. CourtSpeak audio files on the court’s own

docket are self-authenticating without the need to provide the court with a

copy of the audio recording at hearing.

2. Deposition, § 341 Meeting, Telephone Conversation, etc.

The objective of authentication is to provide reasonable assurances that the audio or

video recording accurately portrays what each party to any conversation actually said.

To authenticate an audio recording, or video recording, of a deposition, § 341 meeting,

telephone, or other type of person-to-person communication, the party offering the

audio recording should be prepared to show:

a. The operator’s competence;

b. The fidelity of the recording equipment;

c. The absence of material alterations; and

d. The identification of the relevant sounds or voices.

In addition to the above, the court may require a showing that the original recording

was preserved, statements as to the chain-of-custody of that recording, and that the

elicited conversation was made without inducement. A duplicate of the audio or video

recording should be provided to the court under Fed. R. Evid. 1003 unless a genuine

question is raised about the original’s authenticity or the circumstances make if unfair to

admit the duplicate.

3. Written Transcript of an Audio or Video Recording

Any submission of an audio or video recording must be accompanied by a written

transcript prepared by a qualified transcriptionist (unless both sides stipulate to the

accuracy of a transcript that is prepared by an individual who is not a qualified

transcriptionist). When used to assist the court as an aide to understanding the audio or

video evidence, the transcript does not have to be certified. The presiding judge may

waive the requirement for a written transcript to accompany an audio or video

recording under the following circumstances:

a. The contesting parties request that the written transcript requirement be

waived;

b. The proceeding is uncontested or the responding party fails to appear; or

c. Good cause exists for waiving the written transcript requirement as determined

by the presiding judge.

B. Redaction

Neither the clerk nor the court will remove or redact any electronic evidence containing

personally identifiable information, confidential information, or proprietary information. The

filer submitting electronic evidence is responsible for redaction of such information, or seeking

authority to limit access to such information.

C. Equipment

The court provides audio-video presentation equipment in each courtroom. Available

courtroom technology can be found at the court’s website Any additional equipment required

to view and/or listen to electronic evidence is the responsibility of the party offering the

evidence. Parties should contact the courtroom deputy at 304-234-4003 to test equipment

before a scheduled hearing.

D. Pretrial Determinations of Admissibility

Whenever possible, parties and the court should determine the authenticity of audio and video

recordings in advance of the trial. In limine hearings are useful when the opponent raises

substantial questions based on the unintelligibility of the tapes, gaps in their coverage of the

recorded conversation or event, the extent of the proponent’s editing, or the accuracy of

written transcripts accompanying the audio or video recording.