Trial Tactics: Tape-Recorded Evidence
Samuel A. Guiberson
FORUM:
July-August 1982
California Attorneys for Criminal Justice
Volume 9, No. 4
For years it has been defense attorneys and their clients who have stood
beneath the boiling oil of electronic surveillance convictions, looking up in
awe at the ponderous, impenetrable fortress of tape-recorded evidence. The reflex
response of many defense lawyers has been to assume that whatever emanates from
souped-up electronic devices is so much the offspring of calibrated scientific
certainty that we, as advocates, can help our clients only by trying to undermine
tapes as being unreliably recorded; because, what is recorded on them is hopelessly
incriminating.
Defense lawyers have become so mesmerized with the exotic and unfamiliar
technical aspects of taped evidence that we preoccupy ourselves with finding
flaws in tapes, hinging the client's prospects upon disturbing the jury with
the possibility that the tapes are not trustworthy because they may have been
electronically manipulated, selectively recorded, or outright falsified.
In disputing
only the completeness of taped evidence as recorded, defense lawyers have committed
themselves to trial tactics which often defeat their clients before the jury
has heard a word on tape, only because the attorney has presumed more damaging
evidence to exist on tape than is most probably recorded on it.
Futility
Lawyers' complaining about the futility of trying to win tape cases is like
complaining that poor fishing conditions starved the grizzly bear who grabbed
at the water in the stream and not at the fish. Any defense lawyer whose trial
strategy grabs at the medium which records his client and doesn't deal with
the language recorded, is sure to have a belly full of convictions. The best
avenues of opportunity in a tape case are not found in disputing the tape-recorded
evidence, but by embracing it and relating the defense to what is recorded on
it. Rather than see our clients' prospects for acquittal continue to drown in
a river of magnetic tape, why not let the defense dine heartily on the language
swimming in it?
One reason the defense is more frequently the fish filleted, rather than the fillet-er,
is that prospective jurors come to court with every conceivable prejudicial
notion as to what kinds of things are recorded by law enforcement. They come
equipped with more than any prosecutor could ever dream of putting into their
heads after they are selected to serve on a jury. One hundred percent of what
a prosecutor could hope to accomplish by playing taped evidence is already accomplished
when the jurors know that tape recordings exist, but haven't yet heard the tapes.
The confidence which jurors will place in this medium of evidence is much greater
than they will bestow on any live witness' recollection.
Confidence
Jurors' confidence in taped evidence is so high because they need not rely
upon a witness' account of what happened; they believe that they can independently
verify the actual event preserved on tape through their own senses. Because
what is found on tape is a record of what happened, and is verifiable by the
jurors themselves, the mere offer of taped evidence to the jury by the prosecution
causes the jurors to anticipate and expect that its contents must incriminate.
How the jurors anticipate the evidence controls what the jurors will believe
they are hearing, and controls the jurors' opinion formation about the implications
of what is actually heard. Thus, the attributes of the medium itself control
what the jurors expect from the prosecution's taped evidence. The persuasiveness
of the evidence is assumed from the medium, rather than acquired from its message.
It is the way juries will invest incriminating implications in whatever
conversation is recorded on tape, without any need for encouragement from the
prosecution, which makes defense tactics (such as trying to sweep the recordings
under the rug and emphasize everything else in the case) the functional equivalent
of telling Mrs. Lincoln how wonderful the play was. It is equally futile to
battle against jurors' assumptions about incriminating content of the tapes
by presenting only the defendant's proclamation of innocence, or by claiming
that the good stuff was left unrecorded and, in its absence, the stuff recorded
has just the appearance of being a little less than good. Any jury exposed to
that trial strategy is going to lynch the defendant because the attorney pitted
the client's credibility against the jurors' implicit assumption that the prosecution's
case is verified by the tape recordings.
Inappropriate Tactics
Trial tactics like attempting to ignore taped evidence, or requiring the
jury to choose between the credibility of the defendant's testimony and the
reliability of the tape recording don't succeed; because, they don't speak directly
to the implications of the conversation which was actually recorded. Instead,
they try to override, rather than assume into, the defense--the inherent credibility
and reliability of the taped evidence itself. The jury is not at all inclined
to analyze what they actually hear on tape so long as the taped evidence itself
is not employed by the defense; until that is done, the jury will remain predisposed
to convict the defendant for having said what they expect to hear him say on
the recording, whether it is there or not. Any trial strategy other than one
built upon the tapes themselves needlessly associates, by implication, the strengths
of the medium of tape-recorded evidence with the strengths of the prosecutor's
case which are, surprisingly enough, not necessarily one-and-the-same.
Magnetic tape recordings provide an electronic medium in which recorded
language is preserved, and nothing more. Of course prosecutors want a little
something more. They want the jury to preserve in the blind faith that the secret
recording of a conversation, in and of itself, proves a crime. Why else was
a recording made and now produced in the prosecution's case? Yet, no tape recording
proves a crime. A tape recording proves that a specific conversation took place.
In performing that function, it is much more reliable than the recollection
of a live witness.
A tape's relative merit as a true record is not necessarily to the disadvantage
of the defense. You and your client are not in the courtroom to argue with the
prosecution as to whether or not words are recorded on tape. The defense is
in court to demonstrate to the jury that those recorded words, when carefully
absorbed and understood within the context of all the other testimony, were
not spoken intending to commit a crime.
The Real Issue
The intention of words, and not the recording of them, is the proper point
of focus for a tape-oriented criminal trial. The strengths of recorded evidence
do not automatically strengthen the prosecutor's proof unless defense counsel
neglects to use the taped evidence as if it were his own handiwork. The only
way to out-orchestrate a symphony of surreptitiously recorded evidence is to
harmonize defense tactics with the evidence.
The defense must come to terms with what the defendant said that actually
was recorded. The jury won't pretend, no matter what other facts exist in the
case, that such recorded evidence is not conclusively incriminating unless the
defense is willing and able to demonstrate how the tapes themselves show the
non-criminal nature, and purpose of what was taking place. The jury is not going
to believe that recorded statements don't convict if the defense doesn't prove
to the jury how they work for the defense as well or better than they work for
the prosecution.
The primary objective for the defense lawyer is not to de-emphasize the
tape, not to ignore it, not to attempt to obscure its importance to the jury.
It is to persuade the jury that the tape is not proof of crime, but proof of
a conversation. It is that conversation that the trial is about; it is the conversation
itself that the jury must analyze carefully to decide the real issue of the
case--what the defendant was intending when he said what is said on tape.
Once the defense attorney gets that across to the jury, the litigation shifts
away from whether or not the tapes are real or phony, or whether the words that
were said were or were not said by the defendant. The courtroom dynamic changes
when 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, and argues to the jury
from his opening statement throughout the trial that those tapes should be understood
in a way that is consistent with everything the defense will present. The prosecution
will then be compelled to prove its theory of the case through an interpretation
of the recorded language.
What we take upon ourselves to do in an effective tape defense is to tell
the jury, better than the prosecution is willing or able to tell them, what
is on tape and why it is there; and, to clarify what the jury might have thought
was on tape but is not, in fact, there. Just as martial arts use the aggressive
force of the attack to turn that aggressive force against its initiator, so
our tape defense strategy is not to defy taped evidence, but to rely upon the
way the jury understands what is recorded on tape. Our leverage in throwing
the case our way is precisely the reliability and verifiability of the medium.
Difficulties
Anyone who sits in a courtroom where tapes
are being played at length
to a jury knows it takes precious little time before the jury loses an overall
grasp of the conversations they are listening to. It becomes very difficult
to identify and retain specific knowledge of what is happening, or to attribute
who said what to whom and when, and whether or not it is said before who knew
what. After a few minutes of tape-recorded conversation have been played, it
is difficult for any listener to pass even the most simple factual quiz on the
attribution of words and topics of conversation used by the various persons
recorded.
When many hours or days of tape recordings are played, artificially compressing
weeks, months, or sometimes years of events occurring at different times and
different places with different persons present--with unrelated frames of reference
that were known only to the speakers--all the natural context of events which
existed as they happened is inevitably lost. The jury is rendered helpless in
its effort to independently appraise the content of those recordings.
Psychological Effect
The psychological effect of being compelled to listen to more than anyone's
mind can digest encourages a verdict which is going to rely upon the sheer quantity
of tape-recorded evidence, and not upon any analytical evaluation of the quality
of that evidence. When the juror is unable to keep track of the frames of reference
for the facts as they were known or unknown to the persons recorded on tape,
those conversations fly by him or her like a freight train in the dark of night.
That hapless juror is left standing at the crossroads, able to act only upon
presumptions about the incriminating content of what was heard, and not upon
what was carefully noted and retained when the tapes were being played. In such
a predicament, the juror will decide what he has heard in terms of what he expected
to hear, or was later told that he heard.
The prosecution's tactic is to rely upon those prejudicial expectations,
counting on the taped evidence to win the case rather than expecting to have
to persuade the jury with what is on tape. They are usually miserably prepared
to argue and advocate their theory of a case in terms of the actual language
recorded. Prosecutors think that all they need do is reinforce the taped evidence
by fulminating over a few smoking verbs, prop the tapes up under the jurors'
noses and say, "the tapes speak for themselves."
Indeed, this is all a prosecutor need do if the defense holds itself apart
from the tape-recorded conversations. But, when the defense embraces the tapes
as a reliable record of events which exonerate the defendant, the trial outcome
will turn upon whose interpretation of the intentions of the defendant can best
be demonstrated to the jury from the tapes themselves.
The jury possesses still other expectations about the tapes which provide
opportunities for the defense. When the government sponsors a tape as evidence
before the jury, the jury expects that tape to be entirely consistent with the
government's representation of events. A tape recording that the defense demonstrates
is at least ambiguous, if not in outright contradiction to what the government
maintains was occurring, works against the prosecution because the recorded
conversation is not uniformly consistent with the government's representations
as to the conduct of its own agents in the recording, nor with the language behavior,
of the defendant. A tape recording is a record of what happened, and the government's
case must stand or fall upon the internal consistency of every detail and every
nuance recorded.
Weakening of Prosecution
As the juror becomes able to verify even the minor observations and contentions
of the defense about the contents of the tapes, the prosecution's exclusive
control and manipulative grip on that tape evidence begins to slip. The jury
begins to wonder what these tapes really do prove. The juror now can truly exercise
the confidence he placed in the evidentiary medium of tape recordings; he has
an independent record of what happened against which he can measure the competing
interpretation of what was said and done during the taped conversations.
What
had heretofore been a presumption of the tapes' consistency with the government's
case and an essentially passive status for the jury in interpreting and evaluating
the recordings, is now changed dramatically. The juror becomes a
decision-maker
who must judge two alternative interpretations of the recorded conversations
and decide which one is most verifiable and credible, when viewed in context
with the witnesses in the case that don't have to be plugged into a wall socket.
Once the prosecution's tapes begin to yield corroboration for the defense
theory of the case, the prosecutor is at an extreme disadvantage because, unlike
a live witness, the tape recording has no flexibility. A tape cannot adjust
its testimony and finesse unanticipated weakness in the prosecution's case.
In the volatile courtroom environment, taped evidence is deaf to the prosecutor's
plea for it to somehow rehabilitate itself. If portions of what is recorded
are consistent with the way the defendant sees the events recorded, the prosecution
is thrust into the position of arguing that the tape may say such and such, but
what actually happened was different. Now it is the prosecution whose argument
will have to overcome the jurors' confidence that the recording itself is the
most reliable evidence about what actually took place.
Study the Tapes
No tape defense can prevail, no tape defense can really begin, unless you
as a defense lawyer have a superior grasp of what is actually recorded on tape.
A quality tape defense must work from tape, enhancing the jury's sensation of
being part of the action. Every juror wants to be fair and to believe that he
has judged the defendant by what he meant by his own words, and not judged him
by the words or manipulations of others. If the defense lawyer is well-organized
in presenting what portions of the tape the juror needs to hear to understand
the defense, and if he or she is able to do this by playing the tapes in a way
that makes them accessible and logically consistent, this technique will draw
a juror struggling with his inability to precisely remember what is on tape
toward the defense's interpretation of events.
Once you adjust your trial tactics to present your case using taped evidence,
recognizing that there is running room in even the shortest stretch of tape,
you will find that you are going to be winning your fair share of tape cases
until, alas, you are going to start loving electronic surveillance and start
looking forward to 1984.
