State v. Barden

Under OEC 901, the proponent must present “some evidence sufficient to support a finding that the matter in question is what its proponent claims so as to admit the evidence to the jury—for the jury remains the ultimate arbiter on authenticity, veracity, and reliability of evidence.”

Defendant appealed a judgment of conviction on counts of driving under the influence of intoxicants under ORS 813.011 and misdemeanor driving while suspended or revoked under ORS 811.182(4). On appeal, defendant argued that the trial court erred when it admitted recordings of jail calls made by defendant. According to defendant, the state failed to establish the authenticity of the recordings. OEC 901, which governs the authentication requirements for the admission of evidence at trial, represents a “flexible approach to authentication” that simply “requires the proponent of evidence to establish a prima facie case of authenticity.” State v. Sassarini, 200 Or App 106, 126, 452 P3d 457 (2019). Courts consider the following factors in evaluating whether a proponent has carried that burden: a showing that (1) the recording device was capable of taking testimony; (2) the operator of the device was competent; (3) the recording is accurate; (4) the recording has not been changed, added to, or deleted from; (5) the recording was adequately preserved; (6) the actors or speakers can be identified; and (7) the testimony elicited was voluntarily made without any kind of inducement.” Id. The Court concluded that the testimony presented at trial “was sufficient to meet the state’s prima facie authenticity burden under OEC 901.” Thus, the Court held that the trial court did not err in admitting the recordings. Affirmed.