Can Turn Tape Case Around
CRIMINAL PRACTICE MANUAL
the increasing amount of covert recording in varied criminal cases, defense
attorneys are shifting their emphasis from merely attacking the integrity
of the tapes to showing the jury how tape evidence can present a greater
appearance of criminality than actually exited in the mind of the target.
In the scenario above, for example, your client may have responded "okay"
not as an expression of assent but simply to keep the conversation going
because he was confused, reluctant to be rude, or simply curious. Moreover,
your client had no reason to pick and choose his works, whereas the agent
had a hidden agenda that guided his comments.
understanding and using principles developed by linguists for conversational
analysis, counsel in a tape case can identify misunderstandings and power
imbalances in taped conversations, and show the jury that the tapes do
not incriminate the client and in fact exonerate him. According to attorneys
and linguists interviewed by BNA, conversation analysis has been used
to build a defense in cases involving a wide variety of criminal charges,
ranging from inchoate crimes such as solicitation of murder or conspiracy,
to government operations such as Abscam and white collar crimes such as
View of Taped Evidence
evolution in tape cases may have begun with the 1979 murder-for-hire trial
of T. Cullen Davis, when Samuel A. Guiberson who was clerking for attorney
Richard "Racehorse" Haynes at the time, mobilized an aggressive
campaign to convert the tapes of conversations between Davis and an undercover
FBI agent into evidence for the defense. Dr. Roger Shuy, a professor of
linguistics at Georgetown University, was hired to analyze the tapes.
Shuy eventually took the stand for almost three days, pointing out to
the jury, for example, that the agent had repeatedly raised the topic
of murder and that Davis himself had never done so. In a verdict that
surprised many observers, the jury acquitted Davis.
told BNA that before the Davis trial, defense counsel in tape cases usually
focused only on attacking the integrity of the physical evidence and proving
what the client said in conversations that were not taped. That approach
was based on the incorrect assumption that all the client’s statements
on the tape were inevitably damaging to his interests, said Guiberson,
who now practices in Houston and has handled well over a hundred tape
cases in the last 10 years.
major conceptual shift occurred after the Davis case, Guiberson said,
as attorneys came to realize that tapes could be their best defense. Counsel
no longer started out with the belief that the tapes were physical evidence
like a "smoking gun" that would be damaging to the accused,
but instead began to treat the tapes as speaking evidence to be investigated,
analyzed, and made more useful to the client than to the government.
refined this new approach in the 1980 bribery-conspiracy case against
Texas House Speaker Billy Clayton and others, which grew out of the FBI’s
Brilab (bribery-labor) undercover operation investigating alleged bribery
among labor officials and politicians. An FBI informer wired for sound
and posing as an insurance agent asked Clayton to us his influence to
reopen bidding on a multi-million dollar state insurance contract, and
Clayton was given $5,000 and promised much more.
was hired as a consultant after prosecutors turned over 100 hours of cassette
recordings. He located a tape deck with a computerized digital counter
that allowed him to access a tape at a particular second, and he set to
work organizing the tapes and marking critical passages. Shuy analyzed
the tapes and found that apparently incriminating portions could be construed
innocently and that the informer had manipulated the conversations. He
noted, for example, that the informer kept bringing up Clayton’s name
and the topic of the bribe.
did not testify at the trial, but his work, along with Guiberson’s, laid
the groundwork for attorneys, including Gerald Goldstein of San Antonio,
to argue that the defendants actually tried to discourage the informer.
Clayton claimed that he accepted the cash to avoid embarrassing the Houston
labor leader who introduced him to the informer and that he intended to
return the money. Using the tape deck employed by Guiberson, defense attorney
made sure the jury heard the favorable portions of the tape, such as Clayton’s
statement, "You know our only position is we don’t want to do anything
that’s illegal or anything to get anyone in trouble, and you all don’t
either." The jury acquitted all the defendants.
Davis and Brilab cases teach us, Guiberson said, that attorneys with a
tape case "should focus on co-option of the taped evidence rather
than its exclusion." The goal is to make the tapes speak for the
defense by making the jurors realize that they must weigh the content
of the tapes. Jurors are geared to assume that the tapes presented by
the government will prove the government’s case, and defense lawyers must
change that assumption by having them look carefully at the actual conversations,
When analyzing taped evidence, counsel’s goal is to identify patterns
which are favorable to the defense and inconsistent with the government’s
theory of the case, according to Guiberson. Look for patterns, he suggested,
that reveal the undercover agent’s agenda and techniques, and patterns
that show how he focuses the conversation in a way that will further his
recent years, Guiberson said, undercover agents have developed sophisticated
methods for "programming" conversations to create an appearance
of guilt. To build a defense in a tape case, according to Guiberson, the
attorney must be able to recognize the manipulative language devices that
agents use. He summarized these devices in an outline entitled "Guiberson’s
Guide to Tape Recorded Evidence," which he presented to the Criminal
Defense Lawyers Project Drug Seminar in El Paso earlier this year.
agent’s first goal is to obtain control of the conversation, Guiberson
said, because then he is essentially able to write his own evidence on
tape. Agents also manipulate conversations by initiating certain topics
repeatedly and changing the topic when the target starts to talk about
something else, according to Guiberson. He also noted that agents often
use interruption to defeat any exculpatory statements by a target.
also try to secure the appearance of agreement, Guiberson said by asking
"tag questions" such as "I bet we could work out something
with the gambling commission, don’t you?" The agent hesitation after
this question creates pressure for an answer, and the target may offer
a brief affirmative response such as "Okay" without necessarily
adopting or approving the implications of the question, according to Guiberson.
"Place hold"- making brief responses like "yeah" while
another person talks—is a normal part of our conversational habits, yet
when reduced to a transcript, "okay" or "yeah" may
be read as assent to the criminal implications of the agent’s question.
also observed that agents use ambiguity to the government’s advantage
during covert conversations. An example is an assertion such as "I’m
glad you can help us to get the Congressman going on this." The agent
will testify at trial that this statement referred to a criminal act,
and the target may be held accountable for the agent’s interpretation
of that statement.
agents also try to take advantage of the "contamination principle,"
according to Guiberson. After listening to a sufficient quantity of conversation,
the listener starts to confuse the source of the statements in the conversation
and eventually may attribute the agent’s language or statements to the
also observed that agents sometimes uses a technique known as voicing
of acts—stating out loud something that would not otherwise be apparent
to someone listening to the tape at a later time. Recording agents may
also engage in "loading"---that is, injecting particular words,
paraphrasing, or summarizing past events, such as prior unrecorded conversations---for
the purpose of adding incriminating evidence to the tape, according to
agent may also attempt to use psychological influences in the recorded
conversation, Guiberson observed. To influence the target, the agent may
adopt a passive role by such statements as "You tell me what to do,
you’re the quarterback," which encourage the target to make statements
that portray him as taking a more dominate role than he actually assumed.
In addition, the agent may adopt either an intimidating "bad guy"
persona that makes the target less aggressive in countering suggestions
or an ingratiating "good guy" persona that encourages the target
to comply with requests out of a sense of debt or moral obligation. The
agent may also try "off stage tenderizing"—putting t he target
in a state of mind that encourages a particular behavior in a critical
conversation, by saying, for example, "They won’t take no for an
psychological influences are aimed at the jury as the eventual consumer
of taped evidence, Guiberson noted. The agent may express anxiety about
whether the conversation is being taped and concern about his personal
safety. Such statements make the ensuing conversation seem criminal and
conspiratorial, according to Guiberson.
addition, Guiberson pointed out, the government may position the recorder
to create a greater appearance of criminality. The person heard most clearly
on the tape will be perceived by the jury as have a more active role than
he may have actually played, for example. Moreover, the recorder can be
placed to pick up an incriminating conversation between two individuals
and create the illusion that the target overheard and approved that conversation
even if it took place out of his hearing…
an Expert Be Used
Guiberson stressed that a lawyer with a tape case should analyze for himself
how the language of the tape can be part of his defense, and then decide
if that defense is best presented through the testimony of a linguist,
or through cross-examination and argument. Linguist can provide useful
expertise, but attorneys should not rely on them to formulate their defense,
he stressed. Instead, defense lawyers must master the vocabulary and the
essential concepts and then advocate with these tools. "This is within
the lawyer’s scope of competence,’ he said.
observed that as he developed expertise in cross-examining agents in tape
cases, he came to believe that an expert was not a necessary element of
the defense but at most only one part of the defense. "Learn about
analyzing language and get rid of the sense of alienation," Guiberson
urged. Counsel who hires a linguist should integrate language analysis
into all phases of the trial rather than merely trying to qualify the
expert and have him testify, he said.