A recorded conversation doesn't speak for itself. Witnesses speak of what conversation is recorded on it. Recorded evidence sets out exchanges of words between people, but it is the people who explain those words in the courtroom. Testimony puts context into a recording, and that context determines whose evidence the recording will become.
To cross examine a witness about recorded evidence requires thinking in more dimensions than does the questioning of a fact witness. With a witness's account of the facts, there is only a subjective factual account of what occurred at some time in the past. With a recording in the mix, there is the subjective account of the witness, the contrary subjective account portrayed by the cross examining attorney and then, there is the recording to which both subjective accounts will be compared.
It was not so long ago that the side that offered the recorded evidence always defined its meaning. Only when linguistic analysis was introduced to the courts did the interpretation of what is intended by the words recorded become contested. The objective and subjective circumstances surrounding the interplay of recorded conversations soon became the dictionary and thesaurus for defining the probative value of recordings as persuasive evidence.
This new dimension to recorded evidence litigation requires a more demanding level of preparation for cross examination, direct examination and client testimony. A trial lawyer has to be expert in more than the prior statements of the witness and the contents of documents the witness wrote or adopted. The cross examining attorney must know every conceivable permutation of possible implication, ambiguity or variation in the nuanced meaning presented in the recorded conversation. Using the same recorded language, different lawyers and their witnesses can portray in different ways the purpose to which conversation was put, and both may dispute the consequence of those words based on the same indisputable words found in the audio evidence.
Even recorded evidence that seems indisputable has the potential to invoke profoundly different conclusions about its meaning as evidence. The examination of a witness about recorded language requires not only the photographic recollection of what the witness has said in the past, but
an intuitive anticipation of what a witness could possibly say about the conversation.
Even forensic expert witnesses present challenges when testifying about recorded evidence. Aside from having hyper-technical and arcane science, audio/video engineering and digital technologies in play, audio evidence often attracts experts in emerging fields. Psycholinguistics, sociolinguistics, forensic acoustics and discourse analysis can all be applied to some aspect of recorded information. Given the broad range of expertise that can be brought to bear in a recorded evidence case, the learning curve for expert cross examination is both a steep climb and a moving target.
Our consulting objective it to supplement lawyers' expert skills of cross and direct examination with everything we know about how the perception of recorded evidence can change before the jury's eyes and ears during the interplay between a lawyer and a witness.