Authentication of Electronically Recorded Statement

Goal: Prevent Defendant’s Confessions from Coming into Evidence

Strategy: During trial take the State’s witness who is being offered to authenticate the defendant’s statement on voir dire and challenge the witness to see if he/she is qualified to authenticate the statements focusing on Article 38.22, §3(a)(3) and using Article 38.22, §3(e) to convince the court not to allow the evidence in.

Defendant must have been in custody for this rule to apply. Discussion of “custody” under this article, see also Nguyen v. State, 292 S.W.3d 671, 677−78 (Tex. Crim. App. 2009) (discussing how the “custody” element of article 38.22 can be satisfied).

A qualified witness must be able to testify that:

1) an electronic recording was made of the statement;

2) that the defendant waived his rights under Miranda and Article 38.22;

3) That A) the recording device was capable of making an accurate recording; B) the         operator was competent; and C) that the recording is accurate and has not been altered; and,

4) can testify that all of the material voices in the recording have been identified.

Article 38.22 §3(e) requires the trial court to construe these requirements strictly except that immaterial voices need not be identified.


Texas Rule of Evidence 901: Authentication must also satisfy Rule 901. Seven part Edwards test no longer valid. Martinez v. State, 371 S.W.3d 232, 243(Tex. App.―Houston [1st Dist.] 2011, no pet.).

Potential Questions:

1) Who operated the recording device. DPD interrogation rooms have the video camera hidden and it is activated by an operator outside of the interrogation room. Testimony is that the DPD policy is to have someone outside of the interrogation door, but authenticating witnesses often cannot identify who the operator was. If the operator cannot be identified then his/her competency cannot be established.

2) Whose voices are heard on this recording? Who identified them and can you verify their identity?

3) When did you last view this recording? When you viewed it did you watch the entire recording? Did you fast-forward to get through it? How long is it? How many times have you seen this recording?   In other words, how can you be certain that this recording is what it purports to be?

Exclusion under Article 38.22

The Court of Criminal Appeals has held, at least twice, that Article 38.22 is a procedural-evidentiary rule that governs admissibility; it is different from Texas’s exclusionary rule, Article 38.23 prescribes the various requirements that must be satisfied before a statement made by an accused as a result of custodial interrogation will be admitted against him/her at trial. That such requirements are not met does not mean that the statement was necessarily obtained as a result of any legal or constitutional violation, and art. 38.22 mandates exclusion by its own terms and without reference to art. 38.23. See Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 676−77(Tex. Crim. App.2009); Davidson v. State, 25 S.W.3d 183, 186 n.4 (Tex. Crim. App. 2000) (citing Alvarado v. State, 853 S.W.2d 17, 19 n.3 (Tex. Crim. App. 1993)).


Texas Code of Criminal Procedure, Article 38.22, §3

(a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in  Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the operator was   competent, and the recording is accurate and has not been altered;

(4) all voices on the recording are identified; and

(5) not later than the 20th day before the date of the proceeding, the attorney       representing the defendant is provided with a true, complete, and accurate copy of all   recordings of the defendant made under this article.

(b) Every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant’s conviction for any offense relating thereto is final, all direct appeals therefrom are exhausted, or the prosecution of such offenses is barred by law.

(c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

(d) If the accused is a deaf person, the accused’s statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.

(e) The courts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state, except that:

(1) only voices that are material are identified; and,

(2) the accused was given the warning in Subsection (a) of Section 2 above or its fully      effective equivalent.

Case Law:

Very limited on Article 38.22, §3(a)(3):

Morales v. State, Nos. 05-99-02149-CR, No. 05-00-00209-CR, 2000 Tex. App. LEXIS 6094, 2000 WL 1256878 (Tex. App.―Dallas Sept. 6, 2000, pet ref’d.).

Here, the only requirement that arguably may not have been met is the requirement tat the operator was competent. Although Murphy admitted he did not turn on the audio-videotape, he testified that the operator was competent, because the audio-videotape accurately represented Falcetta’s statement. When the audio-videotape machine is in one room and the interrogation is taking place in another room, someone other than the one conducting the interview operates the machine. The interrogator need not necessarily know who this person is or the extent of their training. If the final product accurately portrays the interview, then it can be inferred that the operator was competent.” Falcetta v. State, 991 S.W.2d 295, 298 Tex. App.―Texarkana 1999, no pet.).

In the present case, Caughron never identified who operated the videotaping equipment or that they were competent. However, he did testify the videotape accurately portrayed the interview. Thus, the trial court could infer that whoever operated the video equipment was competent. Id. We conclude the trial court did not err in admitting the videotape into evidence.

This is not legal advice. Please consult with your own attorney. Or hire me.