Saturday, February 6, 2010

Factors For Admitting “Partially Inaudible” Recordings

From Federal Review:

"Eighth Circuit rules that partially inaudible recordings with a confidential informant may be admitted when the trial court finds that they “provide [the] jury with the ‘gist’ of the conversations” so that any inaudible portions do not “render” the tapes untrustworthy as a whole, in United States v. Trogdon, 575 F.3d 762 (8th Cir. Aug 6, 2009) (No. 08-2858)

Not all recordings for trial are clearly audible. As a pragmatic matter, some portions may be more audible than others. A number of factors may contribute to the quality of the recording including the recording device and external or environmental factors (such as a noisy restaurant or busy freeway in the background). At what point does a recording which contains inaudible portions become inadmissible? The Eighth Circuit reviewed a recent claim that the entire recording should have been excluded since some portions were inaudible.

In the case, defendant Trogdon was charged with conspiracy to distribute marijuana after an investigation. Police closed his operation, arresting various participants and receiving their cooperation. Ultimately one cooperating participant, named Chapman, agreed to cooperate and wear a recording device during two meetings with the defendant. The recording quality “turned out to be poor, however, because the wire was taped to Chapman's leg, and Chapman's movement during the encounter interfered with the recording process.” Trogdon, 575 F.3d at 764.

Before trial, the defendant filed a motion in limine to exclude the audiotape recordings of his two meetings with cooperating witness Chapman in their entirety. The trial court reserved ruling on the motion until any specific portions were offered at trial. At trial, the government introduced the recordings with a transcript. No objection was lodged by the defendant to the recordings. After his conviction, he renewed his challenged to the admission of the recordings based on inaudible passages."

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