A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase

3.11     Tape-Recordings–Admissibility of Tape Excerpts and/or Translated Transcript
            A. Generally
            B. Preferred Procedure Regarding Accuracy of Transcripts
            C. Foreign Language Tapes
            D. Videotaped Depositions—Immigration Case    

A.  Tape-Recordings: Generally

"A recorded conversation is generally admissible unless the unintelligible portions are so substantial that the recording as a whole is untrustworthy." United States v. Rrapi, 175 F.3d 742, 746 (9th Cir.) (citations omitted), cert. denied, 528 U.S. 912 (1999).

B.  Tape-Recordings: Preferred Procedure Regarding Accuracy of Transcripts

"Generally, the Court reviews the following steps taken to ensure the accuracy of the transcripts: (1) whether the court reviewed the transcripts for accuracy, (2) whether defense counsel was allowed to highlight alleged inaccuracies and to introduce alternative versions, (3) whether the jury was instructed that the tape, rather than the transcript, was evidence, and (4) whether the jury was allowed to compare the transcript to the tape and hear counsel's arguments as to the meaning of the conversations." Rrapi, 175 F.3d at 746 (citation omitted).

C.  Tape-Recordings: Foreign Language Tapes

Where a foreign language tape has been translated, the general requirement that the jury be told that the tape and not the transcript are the evidence no longer applies. Rrapi, 175 F.3d at 746.

D.  Tape-Recordings: Video-Taped Depositions - Immigration Case

Pursuant to 8 USC 1324(d): "Notwithstanding any provision of the Federal Rules of Evidence, the videotaped (or otherwise audiovisually preserved) deposition of a witness to a violation of subsection (a) of this section who has been deported or otherwise expelled from the United States, or is otherwise unable to testify, may be admitted into evidence in an action brought for that violation if the witness was available for cross examination and the deposition otherwise complies with the Federal Rules of Evidence." This section "simply allows the introduction of videotaped testimony 'notwithstanding any provision of the Federal Rules of Evidence.'" United States v. Santos-Pinon, 146 F.3d 734, 736 (9th Cir. 1998) (by failing to object to the release of witnesses, defendant waived any objection regarding the government causing witness to be unavailable, as required for use of videotaped deposition).