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25.9 Electronic Recordings

    25.9.1 Tape Recording: When No Transcript Used

    25.9.1.1 Tape Recording: When No Transcript Used -- Jury Instruction
    25.9.1.2 Role Of Argument Of Counsel

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RATIONALE: Recordings may be admitted with portions which are difficult to understand. In the absence of a stipulation as to these portions, an explanatory instruction may be necessary so the jury understands that it should attempt to decide what was said but must not speculate in this regard.

POINTS AND AUTHORITIES: Obviously, an inaudible or unintelligible tape recording should not be admitted into evidence for any reason. (See e.g., United States v. Ruppel (5th Cir. 1982) 666 F2d 261, 272 [jury instructed not to consider unintelligible portions]; see also U.S. v. Singleton (7th Cir. 1997) 125 F3d 1097, 1105 [same]; People v. Warner (NY 1987) 510 NYS2d 292, 293; People v. Farruggia (NY 1984) 461 N2d 295.) While the audibility of tape recordings is a preliminary question which logically should be determined by the trial court (see e.g., People v. Lubow (NY 1971) 272 NE2d 331, 336), there may still be portions of the tape which are difficult for the jury to understand. In such a situation, the jury should be clearly and explicitly instructed that it may not speculate about the contents of those portions which cannot be heard or understood. (People v. Clark (NY 1986) 499 NYS2d 982, 983.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1; 7.3].

USE NOTE: It may also be appropriate to add a reference in the instruction to any argument regarding the meaning of an unclear passage by the attorneys and reminding the jury that what the attorneys say is not evidence and that they should determine what was said from listening to the tape themselves.

See Manual On Recurring Problems In Criminal Trials [3. Admissibility: Tape Recordings Of Conversations].

See also Manual On Recurring Problems In Criminal Trials [3a. Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

See also Manual On Recurring Problems In Criminal Trials [3b. Tape Recordings Of Conversations: Pretrial Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3c. Tape Recordings Of Conversations: Court May Permit Jurors To Have Transcripts As They Listen To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3d. Tape Recordings Of Conversations: Courtroom Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3e. Tape Recordings Of Conversations: Jurors May Rehear Tape Recordings After They Have Begun Deliberations].

See 1st Circuit Pattern Jury Instructions - Criminal 2.09.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.42.

See also 7th Circuit Federal Jury Instructions - Criminal 3.17.

See also 8th Circuit Model Jury Instructions - Criminal 2.06.

See also 9th Circuit Model Jury Instructions - Criminal 2.7.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 6.

    You must not speculate as to any portions of the recording which is unintelligible or unclear.  You must disregard such portions.

[See United States v. Ruppel (5th Cir. 1982) 666 F2d 261, 272.]

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    See FORECITE National™ 25.9.1.1 [Tape Recording: When No Transcript Used -- Jury Instruction USE NOTE].

See Manual On Recurring Problems In Criminal Trials [3. Admissibility: Tape Recordings Of Conversations].

See also Manual On Recurring Problems In Criminal Trials [3a. Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

See also Manual On Recurring Problems In Criminal Trials [3b. Tape Recordings Of Conversations: Pretrial Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3c. Tape Recordings Of Conversations: Court May Permit Jurors To Have Transcripts As They Listen To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3d. Tape Recordings Of Conversations: Courtroom Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3e. Tape Recordings Of Conversations: Jurors May Rehear Tape Recordings After They Have Begun Deliberations].

See 1st Circuit Pattern Jury Instructions - Criminal 2.09.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.42.

See also 7th Circuit Federal Jury Instructions - Criminal 3.17.

See also 8th Circuit Model Jury Instructions - Criminal 2.06.

See also 9th Circuit Model Jury Instructions - Criminal 2.7.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 6.