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20. The victim's testimony is
A defendant is on trial for extorting $10,000 from a victim. At issue is the identification of the person who made a telephone call to the victim. The victim is prepared to testify that the caller had a distinctive accent like the defendant's, but that he cannot positively identify the voice as the defendant's. The victim recorded the call but has not brought the tape to court, although its existence is known to the defendant.
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Oral statements often require authentication as to the identity of the speaker. Although this is technically a «relevance» topic, the rules are the same as those that apply to the authenticity of documents.
A voice, whether heard firsthand or through a device (e.g., a tape recording) may be identified by the opinion of anyone who has heard the voice at any time.
Statements made during a phone conversation may be authenticated by one of the parties to the call who testifies to one of the following: (i) he recognizes the other party's voice; (ii) the speaker has knowledge of certain facts that only a particular person would have; (iii) he called, for example, Mr. A's telephone number, and a voice answered, «This is Mr. A» or «This is the A residence.» This authenticates the conversation as being with Mr. A or his agent; or (iv) he called the person's business establishment and talked with the person answering the phone about matters relevant to the business. An incoming telephone call can be authenticated by the identification of the voice, whether heard firsthand or through mechanical or electronic transmission or recording, or by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
The best evidence rule is more accurately called the «original document rule.» The rule is as follows: In proving the terms or contents of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced.
D is correct. The victim can testify as to his personal knowledge of the defendant's voice because there is no audiotape to be authenticated or identified. Although he cannot identify the caller's voice with absolute certainty, his testimony is still based on his personal knowledge, so his opinion is relevant. The victim's uncertainty goes to the weight that should be given to his testimony, not to its admissibility.
A is incorrect. The victim does not need to absolutely identify the caller before the victim's testimony is admissible as having a tendency to make the existence of any fact that is of consequence to the determination of the action (here, the identity of the caller) more probable or less probable than it would be without the evidence.
B is incorrect. The best evidence rule requires the production of the original when the contents of a recording are being introduced into evidence, which is not the case here. The victim is seeking to testify to his personal knowledge of the caller's voice, not introducing the recording into evidence.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. The best evidence rule does not preclude witness testimony, and the victim is not attempting to introduce the tape into evidence. The best evidence rule also does not apply because the defendant's failure to subpoena the tape does not act as a «waiver» of the best evidence rule.