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Family Law Audio Evidence: Altered Without Editing?

By: David Smith
Tel: 814-410-4787
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A party in a divorce case hired me after his attorney told him that his wife's council was planning to introduce audio recordings during an upcoming custody hearing. My client said these were allegedly recordings of conversations he had with his wife, and that *he didn't know he had been recorded. My client had not heard these recordings, but felt that if they were going to be used against him in court, they must be damaging. He wanted to know if he had any way to defend himself.

Standard Procedure

Audio Forensic Examiners ask for the original recordings as standard procedure. We also ask for the device on which the recordings were made, if it is available. Having access to the original recordings AND the machine on which they were created ensures the best possible audio analysis. However, we do not always get that for which we ask. For example, in the above case, I received a package from my client's attorney containing a CD-ROM with four .WAV files. The only information about the recording device was that it was a small handheld digital recorder. The manufacturer name and model number were not included.

The Examination and Analysis

After transferring the files onto a Forensic Audio Workstation for analysis, I listened to the conversations. Each file was under one minute in length. On most of the recordings, one party was speaking in carefully measured tones and the other party, who presumably was my client, was more animated and, at times, even raising his voice to make a point. There was great contrast in their speech.

I began my analysis to determine if there were traces of editing. During my first pass at the four audio files, I could not conclude that they were edited. The recordings were clear and the voices were distinct. The conversations were all very similar with one party consistently and calmly stating her point of view and the other person, usually agitatedly, expressing his opinion. Determining if the conversing parties really were that consistent in their demeanor wasn't in the scope of authenticating the recordings... or was it? Was this a clue that the recorded files were edited or were these two people just remarkably unvarying with their speech? As I kept working, I discovered that neither conclusion was necessarily correct.

Finding the Obvious

As I continued my analysis, something caught my eye. I hadn't paid much attention to the file names since the time of transfer from the CD-ROM to the Forensic Audio Workstation. I might have noticed if they had been creatively named, "My Husband Really Gets Upset On This Recording!" Instead, they were just the automatic, sequential numbering performed by some small handheld digital audio recorders, the type that was described in the attorney's notes. When I observed the file names, it became clear that, while the four files were in ascending order on the CD-ROM, they were not consecutive. The first file name started in the mid-teens, then four or five numbers (and files) were skipped and the next file was numbered in the high teens, a few more numbers were skipped, the third file was in the low twenties and again, after more missing numbers, the last file was in the upper twenties.

How Do You Edit a Movie?

Listening to the four files in order told a story. What story they told was not important to me. My job was to determine if the story was created or altered through editing. Had words or phrases been added, deleted, or moved to a different location? Were the recordings authentic? While there were some anomalies that could have indicated audio editing, my findings were that, in this instance, without the original recordings and recording device, and without information regarding the original file transfer to the CD-ROM, or the chain of custody of the evidence, I could not determine whether editing to the recorded files had occurred. However, I could state unequivocally that a type of editing had occurred. It is the type of editing used in movie making. In film editing, the editor chooses the scenes that best serve to tell the story that the screenwriter wrote. In this case, we know that only four out of almost 30 files were selected for inclusion on the CD-ROM. That means that approximately 26 recordings didn't make the cut. Why not? Did the recordings not sound intelligible? Were they not important to the case? Or, did they tell a different story? We don't know because we never received all of the recordings that my client's attorney requested.

I included in my Forensic Report that, while it could not be proven that the files were edited, the file selection process was, itself, a form of editing. When it came time to go to court, opposing counsel chose not to enter the four recordings into evidence against my client.

* The couple resided in a "one-party consent" state, meaning that only one person needs to know that a conversation is being recorded. Therefore, his wife did not need his permission to make the recordings.

David A. Smith, ACFEI, IEEE, AES, has more than two decades of professional experience with audio enhancement. Experienced in criminal and civil cases including murder, corporate fraud, employment discrimination, sexual harassment, labor, and family law. Mr. Smith can consult with counsel offering audio forensic evidence examination, analysis, litigation support, expert advice, expert testimony, and related expert witness services including preparation of cross-examinations and courtroom presentations. Clients include Prosecutors, Defense Attorneys, Family Law & General Practice Attorneys, other Legal and Investigative Professionals, HR Depts., Corporations, Private Detectives, & Individuals.

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