THE
DARKEST day in a criminal defense lawyer's encounter with tape-recorded evidence
is the day he learns the prosecution has it. Many a good defense lawyer defeats
himself and his client long before the jury has heard a single recorded word, because
he reacts to the mere existence of tape recordings without analyzing their content.
Most attorneys who don't often encounter tape evidence in court will presume more
damaging content to exist on tape than may actually be recorded on it.
The
gloomy predictions for defendants facing tape-recorded evidence in trial are
often overstated. A prosecution aided by tape recordings is not a guaranteed
conviction. Despite the many highly publicized convictions resulting from investigations
employing extensive tape-recording, there have been some notable acquittals
in cases where prosecutors thought their tapes to be as unbeatable as any.1
This
article discusses some of the new approaches developed in cases in which defense
attorneys overcame tape-recorded evidence to gain acquittals for their clients.
These comments concern tape evidence produced by clandestine recording of one
party to a conversation by another, since this is perhaps the most common method
of surreptitious recording used by law enforcement agencies in the widest variety
of cases and jurisdictions. These new approaches apply to most every fact situation
because the objective is to understand the strengths and weaknesses of tape
recording as an evidentiary medium, no matter what recording devices are employed.
When
tape recordings were first introduced in evidence at criminal trials, defense
attorneys concentrated their efforts on scrutinizing the tape for electronic
manipulation, seeking some sleight of the electronic hand such as editing,
selective omissions, re-recording or outright falsification. Convincing the jury
that there was a difference between the defendant's actual statements and what
was recorded was considered the be-all and end-all of criminal defense against
recorded evidence.
Yet
even in those increasingly rare cases where electronic hanky-panky is clearly
evident, the defense lawyer must still come to terms with what his client said
that was recorded. Trial tactics that are directed against the incompleteness
of the recording process itself are, even under the best circumstances, incomplete
defenses to the implications of the conversation that was accurately recorded.
It
is not the technical perfection or imperfection of the defendant's recorded
statements that produces convictions, but rather the defense counsel's failure
to challenge allegations of criminal purpose in what the defendant says on tape,
by means other than the defendant's own testimony. It is the jury's understanding
of the language process, not the technical recording process, that determines
whether a lawyer's client is convicted or acquitted. Ultimately, it is what
is said on tape that must be confronted by the defense and prosecution alike,
and not what is left unrecorded either by accident or design.
The
jury won't pretend recorded statements don't exist, and the defendant and his
lawyer can't either. The prosecution's tape recording of the occasion in question
can be a far better friend to a defendant than what his lawyer argues he may
have said, that the jury can never hear. Once the defense counsel accepts what
is said on tape by his client and others as an integral part of his own defensive
strategy, the focal point of the litigation and the attention of the jury is
directed toward a more detailed evaluation of what has been recorded and why.
The challenge counsel accepts by choosing this strategy is to know better than
his opponent what is said on tape, as well as what is not said on tape, for there
is always less there than meets the ear.
When
it comes to the ear in most jurisdictions, the eyes have it. Most courts have
so liberalized the use of transcripts that defense counsel, fight as he must
against their use, can expect to see a copy in the hands of every juror when
the prosecution first plays its tapes.
Research
into the psychology of learning teaches that what a juror reads, he hears.
Errors
of transcription can significantly prejudice the jury's understanding of the
evidence. A bad transcript can also diminish the effectiveness of defense counsel
in the preparation of his case. Knowing what is said and what is not said on
tape requires more than a quick review of a sloppy transcript.
The
intelligent preparation of a tape defense requires an accurate and complete
transcript. In most cases, the defendant will be provided with a prosecution
transcript of the recording. In no event should it be relied on by the defense.
In the dozen or so tape cases in which I have worked, there has not been one
in which a careful scrutiny of the tapes did not reveal some significant statement
made on tape that aided the cause of the defense, but had not appeared in the
prosecution's transcript.
It
has also been my experience that prosecuting attorneys are occasionally the
victims of their own transcription errors. Because "bugging" remains an imperfect
science, there are frequently marginally intelligible portions of recordings
that are difficult to understand. These borderline passages are typically omitted
or interpreted in a way favorable to the prosecution.
This
outcome is more the impact of the subjective factors inherent in our listening
perception than an event intended to deceive. The strategy of the defense must
take into account the ways in which the subjective influences affect the supposedly
objective hearing sense of jurors and attorneys alike.
Defense
counsel should also be leery of accepting his client's recollection of what
was said in the recorded conversation. The tape itself is more accurate than
any personal recollection. Nothing is more likely to impair a client's recollection
of his remarks than a review of the other side's transcript. Both counsel and
the defendant should listen to the tapes before any transcript is reviewed so
that the defendant will not be influenced by others' interpretation of his conversation.
Only after reviewing the recordings without the aid of transcripts should tape
and transcript be used together.
If
words have been deleted from a conversation, lack of continuity in the recorded
conversation will be revealed by a good transcript just as it would be by electronic
analysis. Once the defendant and his attorney are satisfied that the transcript
is accurate, the analysis of the contents and preparation of a defense can begin.
THE
OBJECTIVE of the defense should be not to de-emphasize the tape, ignore it, or
attempt to obscure its importance to the jury; but to convince the jurors that
the tape is not proof of a crime, but proof of a conversation that they must
weigh carefully and thoroughly for meaningful content. If the defense attorney
calls upon each juror to make his or her own independent analysis of the meaning
of what is found in the tapes, the prosecution will be compelled to prove its
theory of the case through an interpretation of the recorded language--and not
by presenting the tapes to the jury as a fait accompli.
When
the prosecution attempts to contextualize with an excess of recorded conversation,
the defense must show the juror-specified passages on tape that are not consistent
with the prosecution's contentions. On the other hand, when the prosecution
seeks to limit the jury's focus to the barest minimum, then the defense must
balance the jurors' understanding of a few recorded exchanges with proper context.
In
either event, the defense attorney must build his case on a detailed analysis
of the language on tape. Whether it is in the defendant's interest to show the
jury the forest where the prosecution suggests there are only trees, or trees
where the prosecution argues there is a forest, counsel must teach the jury
how to study conversations as a combination of words and purposes for saying
them.
There
are essentially two different formats of investigative tape recording. One has
as its objective the recording of purportedly criminal transactions, wherein
only one part of what may be a series of communications or conversations is
actually recorded; ostensibly because that single transaction or series of transactions
constitutes the complete accomplishment of the alleged offense. The second is
the broader and more pervasive tape recording of an entire course of dealings
between investigative personnel and targeted individuals.
This
second technique usually produces a boatload of tape recordings. Prosecutors
argue that taping everything rebuts the defendant's contention that selective
recording produces a biased and incriminating context, where all-inclusive recording
would have offered the jury that omitted measure of exculpatory material that
would compel acquittal. There is, however, a far more manipulative and psychologically
sophisticated motive for marathon taping marathon playback to the juries.
It
is simply impossible for a jury to absorb anything after more than a few hours
of listening to tape. If the recording is of poor quality, only a few minutes
can be absorbed. Over a period of hours, no one can maintain the level of concentration
necessary to keep track of who says what to whom, and when they said it, and
whether whatever was said was said before who knew what. Endless hours of playing
tapes to a jury severely reduces the jurors' capacity to retain and independently
appraise the content of the recordings.
The
effect of compelling the jury to listen to more than their minds can digest
encourages a verdict relying upon the sheer quantity of evidence and not upon
an evaluation of its quality. The juror who is overtaxed by overplaying, gains
only a token comprehension of the recordings, prompting that juror to act upon
a presumption of incriminating content and not upon proof. Ultimately, a juror
who has listened too long remembers what he expected to hear or, is told he heard.
When
the prosecution uses its tape evidence in a way that tires the jury and reduces
the jurors' mental attentiveness, the defense gains the advantage if counsel
can anticipate how the jury will hear the prosecution's case on tape, and then
stimulate the jury to remember and question what they have heard. The contest
in tape-oriented litigation is to determine whose interpretation can be best
demonstrated to the jury as explaining why these recorded conversations took
place and what the true intentions of the speakers were when the words were
spoken. The intention of language, not the utterance of words, becomes the decisive
issue.
The
jurors will need help organizing their thoughts about the conversations they
hear on tape. The defense attorney must be able to exercise his theory of the
case more deftly and with more flourish than the prosecution if he expects
to clarify what may trouble the jury about his client's conversations on tape.
The defense lawyer's better preparation and organization of his presentation
of the prosecution's own evidence will draw a grateful juror toward his interpretation.
Remember
that a juror presumes what defense counsel presumed when he first heard the
tapes the worst. The jurors bring to the courtroom a preconceived notion of
the medium of tape recording that influences their understanding of tapes used
as evidence in a criminal trial. There is a presumption that anything recorded
is genuine, spontaneous, and pure of any ill-will toward anything or anyone recorded.
Although
the jurors may intellectually understand that at least one of the persons they
are listening to is aware that he is participating in a conversation--with the
intention of producing evidence to be used to convict the other participant--the implications of that knowledge are seldom-appreciated by the jurors until
it is demonstrated to them that this bias to incriminate determined what was
said, and how it was said by the recording agents.
What
jurors must understand is that taped conversation cannot be taken at face value,
that what they encounter in the courtroom is a recording of a mock conversation
carried on under false pretenses, where the hidden agenda was to obtain a recording
of a conversation custom-built to put the defendant up the creek without a paddle.
WHAT
THE JURY cannot recognize on first hearing, cannot distinguish unless the tell-tale
signs are revealed to him by counsel, is that your client is more likely than
not being towed up the creek while being talked out of his paddle. Jurors need
to witness and to judge the intentions of the recording agents just as the prosecution
insists they judge the criminal intentions of the defendant.
The
prosecutorial mystique of tape evidence is that it supposedly records a crime
in progress. What prosecutors will not clarify for the jury is that the "spontaneous"
conversation would not have occurred but for an intention of one side to convict,
and an ignorance of that purpose on the other.
What
words are spoken need to be understood in that light, and to that end the defense
accepts the burden of explaining the recorded conversation linguistically.
The
defense must do what the prosecution will not: break the recorded conversation
down into all its many parts to help solve the puzzle of what was meant, by what
was said on tape.
Once
the jury is told that the recordings incriminate the defendant, the prosecutor
wears the whole cloth of what was recorded, and not merely those specific statements
he considers incriminating. The prosecution's theory of the defendant's conduct
and criminal intention must embrace every conversation, every verbal exchange
recorded. If the language behavior of all the parties to the recorded conversation
is not consistent with the prosecution's representations as to the conduct of
its agents as well as the conduct of the defendant, the prosecution's grip on
its own tape evidence begins to slip. Unlike the witness in the courtroom, tape
evidence cannot explain its own inconsistencies.
Analyzing
the language used in recorded conversation permits defense counsel to penetrate
the superficial consistency of tape evidence. Linguistic analysis of conversation
will often reveal conflicts, mistaken references, cross-purposes, and vague statements
that are not consistent with the prosecution's case. When lawyers approach tapes
as if they had the fixed properties of physical evidence, they mistake the medium
of tape recording for the message recorded. An inspection of audio tape reveals
a uniform surface, but an examination that goes beneath that surface into the
conversation recorded, reveals all the consistency of jello on an open fire.
In
revealing a recorded conversation, test all the language heard on tape to determine
whether those recorded reacted to one another in conversation in a way that
is consistent with what the prosecution argues as its theory of the case.
Look
first for what topics are discussed, who starts to talk about what, who responds,
how that topic of conversation is resolved or reintroduced, by whom and how
insistently, who brings up the purportedly illegal acts, who interrupts if the
topics are changed, who uses phrases with criminal connotations, who hurries,
who defers, or promises what.
No
single observation is going to win or lose a case, but asking these kinds of
questions and noting what you observe will generate a pattern, an organized
picture of who is controlling and who is being controlled in the course of the
recorded conversation. Individual statements must be studied in context until
a pattern of conduct emerges that can be compared to the testimony given in
court.
By
this method of demonstrating patterns of language behavior occurring at the
time the conversation was being recorded, the defense provides the jury with
an objective basis (other than testimony of prosecution and defense witnesses)
upon which to question the prosecution's contentions as to the purposes of the
recorded conversations.
If
the defense attorney has sought to explain to the jury how taped conversation
can be understood and evaluated, the jury will organize its thinking about
the tapes in the framework of that analysis. The jury can make comparisons and
not discrepancies, test the logic of the prosecution's theory, and measure the
testimony of prosecution witnesses against the spoken record of how they behaved
with their words as they were spoken on tape, and not as they behave on the
witness stand. The jury cannot be permitted to understand the tape-recorded
conversation involving your client in the context of his own trial, as a person
accused of a crime. It is defense counsel's responsibility to communicate to
the jurors that they must hear what is said by the defendant on tape with an
ear to what the defendant knew then, and not what they may know now about the
circumstances surrounding his being recorded.
It
is a positive sign if the jurors conclude that your points about language behavior
are obvious once their attention has been directed to them. What the defense
wants the jurors to know is that defense contentions about the contents of the
tape evidence can be validated by the jurors' own listening, and that it is
the defense, and not the prosecution, that has encouraged such close scrutiny
of the tapes.
If
the prosecution promised tapes that would convict the defendant with his own
words, but produced a transcript that was inaccurate or slanted, and if the prosecution
exhausted the jurors with mind-numbing hours of tape playing while the defense
aided them with a well-organized summary and analysis of the tapes, and if testimony
intended to prove up the tapes proved instead that they were as consistent with
the defense theory of the case as the prosecution's, then the inherent advantage
of taped evidence can be neutralized, and the outcome of the case determined
by what is said in the courtroom, and not by voices floating across a magnetic
head.
