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Trial Tactics: Recorded Evidence
Samuel Guiberson writes a short piece on defending against recorded evidence at trial. |
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Introduction
For years it has been defence attorneys and their clients who have stood beneath the boiling oil of undercover sting convictions, looking up in awe at the ponderous, impenetrable fortress of secretly recorded evidence. The reflex response of many defence lawyers has been to assume that whatever emanates from secret recording devices is such persuasive proof of what the prosecution intends it to prove that we, as advocates, can help our clients only by trying to dispute the spoken words of our client as having been unreliably recorded.
Defence attorneys have become so mesmerized with the exotic and unfamiliar technical aspects of recorded evidence that we preoccupy ourselves with finding flaws in recording process, 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 or authenticity of the recorded evidence, defence lawyers have committed themselves to trial tactics which often defeat their clients before the jury has heard a word of recorded evidence, only because the attorney has presumed more damaging words to exist on tape than are most probably recorded on it.
Futility
Lawyer's complaining about the futility of trying to win cases with undercover recordings is like a hungry bear grabbing at the water in a stream and not at the fish. Any defence lawyer whose trial strategy grabs at the evidentiary media of audio recording and doesn't deal with the language actually recorded is sure to have a belly full of convictions. The best avenues of opportunity in an undercover case are not found in disputing the accuracy of the words spoken in a recording, but by embracing it and relating the defence to what is recorded on it. Rather than see our clients' prospects for acquittal drown in a river of audio recordings, why not let the defence dine heartily on the language swimming in it?
One reason the defence is more frequently the fish caught on an undercover hook, rather than the fish released is that judges who hear undercover cases in court start with every conceivable prejudicial notion as to what the recorded conversations must say to have been recorded by police. They come to court equipped with more negative presumptions about the evidence than any prosecutor could ever dream establishing. One hundred percent of what a prosecutor could hope to accomplish by playing recorded evidence is already accomplished when the judge knows that prosecution has undercover recordings, but hasn't yet heard them. The confidence that jurists will place in this medium of evidence is much greater than they will bestow on any live witnesses’ recollection.
Confidence
Jurists’ 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 recorded evidence through their own senses. Because what is found on an audio recording is a record of what happened, and is verifiable by listening, the mere offer of recorded evidence by the prosecution causes the jurors to anticipate and expect that its contents must incriminate. How the Court anticipates the evidence controls what the Court expects to hear, and so controls opinion formation about the implications of what is actually heard. The attributes of the recording medium itself tend to control what the Court expects from the prosecution's recorded evidence. The persuasiveness of the evidence is assumed from the medium, rather than acquired from its message.
It is in this way that listeners will invest incriminating implications in whatever recorded conversation is offered in evidence, without any need for encouragement from the prosecution, which makes defence tactics based on disputing the recorded conversation so hopeless.
It is equally futile to battle against a judge’s assumptions about the incriminating content of the recorded evidence by presenting only the defendant's proclamation of innocence, or by claiming that the favorable conversation was left unrecorded and, in its absence, the words recorded have just the appearance of being a little less than favorable to the defendant. Any Court exposed to that trial strategy is going to convict the defendant because the attorney pitted the client's credibility against the judge’s assumption that the prosecution's case is verified by the tape recordings.
Tactics that Succeed
Trial tactics such as attempting to ignore taped evidence or requiring the Court 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 that was actually recorded. Instead, they try to override the recorded evidence, rather than integrate the inherent credibility and reliability of the recorded evidence into the defence. No jurist is at all inclined to analyze the meaning of the words recorded so long as the recorded evidence itself is not employed by the defence. Until that is done, the Court will remain predisposed to convict the defendant for what they expect to hear on the recording, whether it is there or not. Any trial strategy other than one built upon the interpretation of the actual recorded exchanges needlessly associates the strengths of the medium of recorded evidence with the strengths of the prosecutor's case, two distinct bodies of evidence that are not necessarily one and the same.
Audio recordings made during sting operations provide an electronic medium in which recorded language is preserved, and nothing more. Of course prosecutors want a little something more. They want the Court to persevere 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?
No tape recording proves a crime. A voice recording proves that a specific conversation took place. In performing that function, it is much more reliable than the recollection of a live witness. An audio recording's relative merit as a true record is not necessarily to the disadvantage of the defence. You and your client are not in the courtroom to argue with the prosecution as to whether or not there were words recorded. The defence is in court to demonstrate that those recorded words, when carefully absorbed and understood within the context of all the other testimony, were not spoken in commission of a crime.
The Real Issue is the Language
The intention of words, and not the recording of them, is the proper point of focus for a defence in an undercover sting trial. The strengths of recorded evidence do not automatically strengthen the prosecutor's proof unless defence counsel neglects to use the recorded evidence as if it were his or her own handiwork. The only way to out-perform a symphony of surreptitiously recorded prosecution evidence is to harmonize defence tactics with that evidence.
The defence must come to terms with what the defendant said that actually was recorded. The Court won't pretend, no matter what other facts exist in the case, that such recorded evidence is not conclusively incriminating unless the defence is willing and able to demonstrate how the voice or video recordings themselves show the non-criminal nature and purpose of what the defendant believed was taking place as the recording was in progress.
A trial Court is not going to believe that recorded statements don't convict if the defence doesn't prove to the Court how they synchronize with the defence as well or better than they synchronize with the prosecution. The primary objective for the defence lawyer is not to de-emphasize the recorded evidence, not to ignore it, and certainly not to attempt to obscure its importance. It is to persuade the trial court that the tape is not proof of crime, but only proof of a conversation. It is that conversation that the trial is about. It is the conversation itself that the court must analyze carefully to decide the real issue of the case - what the defendant was intending when he said what is said on the recording.
Once the defence attorney gets this point across, 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 defence attorney calls upon the Court to make an independent judicial analysis of the meaning of the recorded verbal exchanges and argues from his opening statement throughout the trial that the audio evidence can be understood in a way that is consistent with everything the defence will present. The prosecution will then be compelled to prove its theory of the case through its own sentence-by-sentence interpretation of the recorded language.
What we take upon ourselves to do in an effective recorded evidence defence is to explain to the Court, better than the prosecution is willing or able to explain, what is on the recordings and why it is there, and, if need be, to clarify for the Court why what the prosecution might have thought was so clearly expressed on the recording is not an accurate characterization of what the parties in conversation actually understood. Just as martial arts turn the aggressive force of the attack against the attacker, the defence strategy in an undercover case is not to defy the recorded evidence, but to rely upon it as an aid to proper understanding of the incidents and verbal exchanges that were captured on the recording. The best leverage defence counsel has for bringing the case to a defence point of view is precisely the reliability and verifiability of the audio recording.
Difficulties in Interpreting Recorded Evidence
Anyone who sits in a courtroom where audio evidence are being played at length knows it takes very little time before the listeners lose 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 only a few minutes of playing recorded evidence, it is difficult for any listener to pass even a simple factual test about 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, all with personal frames of reference that were known only in the moment to each of the speakers, all the natural context of events which existed as the recordings were being made is inevitably lost. In the course of a single listening, we are all rendered helpless in our efforts to independently evaluate the content and the implications of what is said in such 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 probative quality of that evidence. When the Court is unable to keep track of the frames of reference for the facts as they were known or unknown to the persons recorded, those conversations fly by like a freight train in the dark of night. The Court is left standing at the crossroads, able to act only upon presumptions about the incriminating content of what was heard, and not upon any logical analysis that could be spontaneously noted and cross referenced to other case facts as the recordings were being played.
In such a predicament, the jurist 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 recording of the evidence to win the case rather than expecting to have to persuade anyone with a detailed dissection of the conversations that were 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 Court’s nose and say, "the recordings speak for themselves." Indeed, this is all a prosecutor need do if the defence holds itself apart from the recorded conversations. But when the defence embraces the recorded evidence as a reliable documentation of events that exculpate the defendant, the trial outcome will turn upon whose interpretation of the intentions of the defendant can best be demonstrated from the recordings themselves.
A court possesses other expectations about the tapes that provide opportunities for the defence. When the prosecution offers a recording in evidence, the court expects that recording to be entirely consistent with the prosecution's account of events. A recording that the defence demonstrates is at least ambiguous, or is in outright contradiction to what the prosecution maintains took place, works against the prosecution because the recorded conversation is not uniformly consistent with the prosecution's representations about the conduct of its own agents in the recording, or consistent with the language behavior of the defendant. A recording is an audio document of what happened, and the prosecution's case must stand or fall upon the internal consistency of every detail and every nuance recorded.
Weakening the Prosecution
As the Court is given the means to verify even the most minor observations and contentions of the defence about the contents of the undercover recordings, the prosecution's exclusive control and manipulative grip on that recorded evidence begins to slip away. The judge begins to wonder what these tapes really do prove. The Court can now truly exercise the confidence it has placed in recordings. The Court can use the independent record of what happened and what words were exchanged to compare and contrast the competing interpretations of what was said and done during the undercover conversations. What had heretofore been a presumption of the undercover recordings' consistency with the prosecution’s case and an essentially passive role for the judge in interpreting and evaluating the recordings has now changed dramatically. The jurist 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.
Once the prosecution's undercover recordings begin to yield corroboration for the defence theory of the case, the prosecutor is at an extreme disadvantage because, unlike a live witness, the audio recording has no flexibility. A recording in evidence cannot adjust its testimony and finesse unanticipated weakness in the prosecution's case. In the volatile courtroom environment, recorded 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 verbal exchanges and actions 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 judge’s confidence that the recording itself is the most reliable evidence about what actually took place.
Study the Tapes
No tape defence can prevail and no tape defence can really begin, unless the defence lawyer has a superior grasp of what is actually said during the undercover operation. A quality recorded evidence defence must work from the recorded evidence, detailing every nuance of conversation and explaining the subjective perspectives and agendas of those who were part of the recorded exchanges as they were recorded.
Every judge wants to be fair and to believe that he has judged the defendant by his own words, and not judge him by the words or manipulations of others. If the defence lawyer is well-organized in presenting what portions of the recording the court needs to hear to understand the defence, and if he or she is able to do this by playing the key passages of the audio recordings in a way that makes them accessible and logically consistent, this strategy will draw a the Court toward the defence interpretation of the intentions of all those who were recorded. Once the defence lawyer adjusts his trial tactics to presenting the case for the accused from the recorded evidence, the tide will have turned against the inevitability of conviction in undercover cases.
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| SAM GUIBERSON is the head of Guiberson Consulting, p.l.c. and advises and assists other defence attorneys in cases involving undercover operations, electronic surveillance, and recorded evidence. He may be contacted at guiberson@guiberson.com. |
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