Authentication and Hearsay Issues with Phone Records

Suppose that the state wants to introduce the defendant’s phone records, in order to show that he called the victim in violation of a DVPO. The state subpoenas the records, and the phone company provides them, along with an affidavit from an appropriate employee stating that they are business records. Armed with the records and the affidavit, will the state be able to introduce the record over the defendant’s objections (1) that the records cannot be authenticated, and (2) that the records are hearsay not within any exception? The authentication objection should be denied. Even without the affidavit, the “distinctive characteristics” of the records, such as their appearance and structure, references to the defendant as the subscriber, and the like might be sufficient to authenticate them. See N.C. R. Evid. 901(b)(4); Fry v. State, 885 N.E.2d 742 (Ind. Ct. App. 2008) (sufficient showing that cell phone records were authentic where they were produced in response to law enforcement’s request; contained a list of call times and durations; and “contain[ed] multiple references to the account holder's name, and identifying labels of the corresponding cell phone companies;” there were “hundreds of reference points from which it could be determined that they are the purported records for the requested cell phone numbers”). The affidavit removes all possible doubt on the authentication issue, and the affidavit may properly be considered because the authenticity of a document is a preliminary question to which the rules of evidence do not apply. See generally N.C. R. Evid. 104(a) [...]