RECORDED CONVERSATIONS ARE ADMISSIBLE
IN EVIDENCE IF RECORDED WITH THE PERMISSION
OF ONE OF THE PARTIES TO THE CONVERSATION
In a criminal prosecution, taped conversations between the defendant and another which were recorded without the defendant's knowledge or consent but with the consent of the other party are admissible and do not violate the defendant's Fourth and Fifth Amendment rights. United States v. White, 401 U.S. 745 (1971); Lopez v. United States, 373 U.S. 427 (1963); United States v. Caracci, 446 F.2d 173 (5th Cir.), cert. denied, 404 U.S. 881 (1971). The consent of one party to the conversation eliminates any claim of illegality as to the recording per se even when the government had participated in the recording. United States v. Fanning, 477 F.2d 45 (5th Cir. 1973), cert. denied, 414 U.S. 1006 (1974). The Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, 385 U.S. 293, 302 (1966). Where it is proper to testify about oral conversations, taped records of those conversations are admissible. Lopez, 373 U.S. at 387. See also United States v. Conroy, 589 F.2d 1258, 1264 (5th Cir.), cert. denied, 444 U.S. 831 (1979) ("If the informant may reveal the conversation at a later time, he may contemporaneously transmit it to third persons").
TAPE RECORDINGS OF CONVERSATIONS
ARE ADMISSIBLE ONCE THE GOVERNMENT
LAYS THE PROPER FOUNDATION
The controlling authority in this Circuit on the authentication of tapes is United States v. Biggins, 551 F.2d 64 (5th Cir. 1977). In Biggins, the Fifth Circuit held that the party introducing a tape into evidence has the burden of going forward with sufficient evidence to show the recording is an accurate reproduction of the conversation recorded. In a criminal trial, generally this will require the government to show: (1) the competency of the operator; (2) the fidelity of the recording equipment; (3) the absence of material deletions, additions, or alterations in the relevant part of the tape; and (4) the identification of the relevant speakers. Id. at 66. Although this is the preferred foundation, there are not strict particularized standards governing the admissibility of tapes since the purpose of the inquiry is to establish and ensure the accuracy of the recording.
