Undercover operations have been a widely publicized glamour tool of American law enforcement since the invention of the miniature transmitting microphone and the pocket sized audio recorder. The myth of the method is that it captures conversation as would a fly on the wall, a passive monitoring of conversation that would have occurred whether a law enforcement agent or informant was present or not. The fact is that the methodology of undercover recording is always proactive and often provocative in the use of conversational strategies that exploit conversation as a tool of incrimination.
The language used to control and direct conversation is recorded as surely as is the language of the unsuspecting individual being recorded. The audio record that captures the evidence for future prosecution is likewise a fertile source for exculpatory content. Co-opting the prosecution's evidence to make it defense evidence is not a scheme hatched in the mind of a defense lawyer, but the unintended consequence of decisions made by the recording agents during the undercover operation.
Defense tactics that reveal the undercover agenda and techniques of incrimination are key to a more balanced comprehension of how the recorded verbal exchange originated. The hurdle to overcome is that law enforcement's mere use of an undercover recorder instills a presumption of certain incrimination in a jury's expectations for that evidence. To overcome that prejudice by clear demonstration of the directive and passive roles each participant played in the recorded exchange is to turn the persuasive potential of recorded evidence to the advantage of the defense.
There is nothing casual or easy about making these arguments. Success is rooted in highly disciplined analysis of conversational features at what seems a microscopic level to the inexperienced. The recorded conversations must be related in time and topic to all other evidence in discovery. Any significant background events audible while the conversations were recorded have to be analyzed from the acoustic content of the recording. Transcription must be accurate to the syllabic level, including speech performance errors and other features that reveal tension or anxiety during conversation. Cases have been won or lost on an apostrophe.
As is it with all trial advocacy, the most important element is the narrative of what preceded and what followed the recorded conversation as well as what unseen and unheard events took place while the conversation was occurring. The mosaic of expectations, tacit understandings and implicit role playing that offer motivational context to the events recorded are as critical to make manifest as the words heard on the recording.
A defense cross examination in a recorded evidence case is as spontaneous as a space launch. Every nuance of possible interpretation is anticipated, every counter explanation prepared for and every other aspect of the evidence integrated with what the audio recordings will tell the jury when it is the defense lawyer's turn. Staging the presentation of evidence from a recording also requires sophistication in the use of several different media simultaneously, if the defense lawyer is to bringing a jury with you into the moment the recording was being made. The journey made at trial to experience the recorded evidence through the defendant's eyes and ears is the journey we lead.