How to Submit Audio or Video Recordings as Exhibits in a NC Guardianship Hearing

Recordings as Evidence: A Valuable but Procedurally Demanding Tool

A recording of a parent expressing confusion, being manipulated by a caregiver, or demonstrating clear cognitive decline can be compelling evidence in a guardianship hearing. But recordings don't get into evidence automatically — they must be authenticated, properly disclosed, and admitted under NC's Rules of Evidence. Getting these steps wrong can result in exclusion of evidence you worked hard to obtain.

Step 1: Confirm the Recording Is Legally Obtained

A recording can only be used as evidence if it was lawfully made. Under G.S. 15A-287 (NC's wiretapping statute), audio recordings must have the consent of at least one party to the conversation. If you were present and a party to the conversation, the recording is lawful. If you recorded a conversation without being a party to it, the recording may be inadmissible and obtaining it may have been criminal.

For details on the legality of obtaining recordings in various scenarios, see our article on recording caregivers in NC.

Step 2: Preserve the Original

Courts care about authenticity — whether the recording is what you say it is, and whether it has been altered. Best practices:

  • Keep the original, unedited recording file on the device where it was made
  • Do not edit, clip, or filter the original
  • Note the date, time, location, and who was present at the time of recording
  • If possible, document the chain of custody — who has had access to the recording since it was made

If you need to make a copy to share (with your attorney, with the GAL, or to submit to the court), copy from the original and keep the original intact.

Step 3: Disclose the Recording in Advance

In a contested hearing, you cannot spring a recording on the other side at the last minute. NC courts expect parties to disclose evidence in advance of hearings. Your attorney should provide notice to opposing parties that you intend to use the recording.

Even if you are representing yourself (pro se), notify the clerk and opposing parties in writing that you intend to present audio or video evidence at the hearing, describe what it is (date, who is speaking, approximate length), and give them an opportunity to review it.

Failure to disclose in advance can result in the evidence being excluded.

Step 4: Authenticate the Recording at the Hearing

Under NC Rules of Evidence Rule 901, evidence must be authenticated — meaning you must provide sufficient evidence that the recording is what you claim it is. For an audio or video recording, authentication typically involves:

  • Testimony from the recorder: The person who made the recording testifies about when and how it was made, that it accurately represents what they heard and observed, and that it has not been altered
  • Witness identification: If the recording contains voices, a witness who knows the speakers can identify them
  • Technical authentication: In some cases, metadata from the recording device (date/time stamps) or testimony from a technical expert

In a guardianship hearing before a clerk, authentication is often less formal than in a jury trial — but the basic foundation must be laid.

Step 5: Address Hearsay

Audio and video recordings often contain statements by people who are not testifying at the hearing. Those statements may be hearsay under NC Rules of Evidence Rule 801.

Common exceptions that may allow the statements in:

  • Admission by a party-opponent (Rule 801(d)(2)): Statements made by a party to the proceeding (such as a POA agent who is a party) are not hearsay when offered against that party
  • State of mind (Rule 803(3)): Statements expressing the declarant's then-existing mental, emotional, or physical condition
  • Present sense impression or excited utterance (Rules 803(1), 803(2)): Statements made in the moment or under the stress of a startling event
  • Statements for medical diagnosis (Rule 803(4)): Statements made for purposes of medical diagnosis or treatment

If the recording is of the respondent expressing confusion, disorientation, or statements about their physical condition, several of these exceptions may apply.

Practical Submission Format

Most courts want recordings submitted in a playable format. When you submit the exhibit:

  • Provide the recording on a USB drive or CD (confirm with the clerk what they accept)
  • Label it clearly: "Exhibit A — Audio Recording, [Date], [Duration]"
  • Provide a written transcript if possible — this helps the court follow along and creates a more usable record
  • Be ready to play it on a device in the courtroom — do not assume the clerk has equipment

If the recording is from a phone or voice memo app, you may be able to play it directly from the device during the hearing after authentication.

If the Recording Is Excluded

If the clerk rules the recording inadmissible, don't abandon the underlying facts. The person who made the recording can still testify about what they personally observed — the confusion, the statements, the interaction. The recording supports that testimony but is not the only way to get the facts before the court.

The information on this page is for educational purposes only and does not constitute legal advice. Learn more about ElderAdvocate.law.