"There's Gold in Them Thar Tapes"BNA Criminal Practice Report, May 20, 1998

Although credited with inventing forensic tape analysis, Houston attorney Sam Guiberson advises defense attorneys not to turn taped evidence over to an expert immediately. Instead, conduct a "lawyerly diligent investigation" of how the tapes might help the case, for example, by showing that the agents guided the conversation away from non-inculpatory statements or by revealing a background noise that corroborates the client's version of events.

The sound of a drawer closing, captured in the background of a tape-recorded conversation, made the difference for a lawyer accused in a cocaine sale, corroborating his contention that money had been placed in a drawer and was not in his view.

The difference of one syllable, the difference between the imperative statement "do the judge" and the conjectural "He'd do the judge" was the key to an acquittal in a murder case.

And the hysterical reaction "it's a dog" to the sound of a computer printer demonstrated the distorted reality of a young woman being interrogated about the death of her infant, contributing to her being found not guilty by reason of insanity.

These were several of the real-world examples Houston attorney Sam Guiberson used as he talked about "Audio & Video: Tuning the Tapes to the Defense Frequency" at an NACDL seminar in Santa Monica last month.

"Try to visualize someone with an old radio trying to isolate that single frequency, that signal that brings clarity to the communication they are hearing over the airwaves," Guiberson said, outlining ways for the defense to "harmonize the contents of tapes with the theory and needs of a particular defense."

Everything good about a tape case flows from the bedrock principle: make the tape your own," he said. Building on the theme of making the tape your friend, Guiberson said that "Like a friend, you want to know (the tapes) better, you want to understand every facet, every detail of that recorded evidence because you know that somewhere in there is something really good for you."

Guiberson described what he called the "helpful therapeutic step" of bringing the client to understand that the tapes are "really good for him" and convincing him or her not to repudiate the taped evidence Imitating a client repeating the mantra "That ain't my voice," Guiberson commented that "as long as the clients are in denial about the tape evidence, they are not going to be real helpful in helping you structure a way to defend them." Like jurors, clients at the outset presume that the existence of tape evidence ensures conviction and that to admit identification as the speaker on the tape leads inevitably to a finding of guilt. Thus, the client is essentially the "first juror" the defense lawyer needs to convince that tape evidence is vulnerable and inconclusive when seen in its original context.

Scrutiny of tape evidence includes not only assessing whether the tape is authentic and analyzing the language content, but also sorting out noises in the background that may have a bearing on events and may contradict people's statements about events, he said. Ultimately, the evaluation of a tape recording has as much to do with the behavior of the undercover agents and informants as it does with the client, he said. This is because " the tape does not capture a crime. It captures words, and the words of the accused and the words of the accuser have equal weight and they are equally vulnerable to impeachment based on a thorough and exhaustive analysis of that recording. "

Technical analysis first. "You have to know that you are working with the real thing," said Guiberson, and that is why the technical aspects of tape investigation come first." The only way to identify the helpful evidence is to ensure that you are working with all of the taped evidence, Guiberson said. He stressed the importance of working from the original, "not from the half-hearted duplication with suspect agenda being provided by the government." It is "not flat good enough to accept a duplicate that the government or state gives you in a criminal case." He said.

Guiberson advocates that the defense hear the original and record its own duplicate. Acknowledging the tedium involved, he outlined what he called the "pitfalls" of accepting prosecution duplications: selective re-recording, the omission of agent comments, and the elimination of the prosecution's re-recording process as the cause of technical problems.

"You want to make sure they bothered to tape everything," he said, commenting that it seems curious that government agents don't seem to find time to tape the preliminary "four hours of banter back and forth between the informant and the agent" or the "post-game wrap-up on whether this guy did or didn't take the bait." Sometimes, intermittent conversations that were recorded are not included in what is given to the defense "because they don't have your guys spilling their guts," Guiberson said.

These addition pieces can "make a lot of stuffing for that trial turkey" if the defense can get them, Guiberson said. In the current Houston City Council sting case, a videotape of one conversation ended abruptly. When the defense went back to the original videotape, it discovered almost an hour more of additional conversation that had not been passed along to the defense, including some "extraordinarily exculpatory" statements by the defendant disavowing a financial interest in the project the "businessmen had approached him about.

Another reason to work from the original, Guiberson said, is that "each successive generation decreases the quality of the recording in a slight way. However, as defense lawyers luck would have it, it is always in the marginal zones of intelligibility that the really good stuff happens and if you are working with a dupe of a dupe of a dupe, you end up working with a tape that doesn't give you a full range of what you need to find."

Referring to the increased efficiencies of the new technology, Guiberson recommended that the defense acquire from the original a duplicate in digital audiotape format, which "assures virtual identity between subsequent generations of digital recordings from that original." Furthermore, it is infinitely easier to use tapes in a digital format, both in analyzing the contents and in using the evidence in court, he said. "Your computer is your tape player."

In analyzing the tapes, make sure they "hang together in time," Guiberson said noting that a radio in the background might supply a time indicator that is either consistent with the government's theory or with your own or might reveal omissions in the recordings.

By disassembling the taped evidence into its logical subparts, it may be possible to prove that there were other tapes that were not turned over in discovery, said Guiberson. "It turns the jury off real fast" when they learn that segments of conversations were not recorded or that parts of tapes are blank. "The government is invested with the burden of being impeccably honest" and if the government’s method of taping becomes suspect, its credibility becomes suspect, he said.

Use experts sparingly. Once you get the material, "resist the inclination to simply delegate all your professional responsibilities" to the expert, Guiberson said. "Wait and do your job first. Conduct a lawyerly, diligent investigation of the recording with what you know how to do before you prematurely narrow the scope of available defenses." A forensic expert analysis may help to explain a relatively marginal issue but may at the same time consume the available funds before the legal analysis has been done. "Don't put all your eggs in this forensic eggs basket," he warned. Noting that "I am supposed to have invented forensic tape analysis," Guiberson said he uses it very sparingly.

On the use of discourse analysts or linguists, he said that he has found that jurors ten to become" very proprietary about their knowledge of language" when they listen to tape evidence for week after week and consider themselves qualified to do the analysis that such an expert would do. "The best expert you can obtain to make your case [in a tape case] is the jury. The second best expert is you. The third best is anyone who has to be cross-examined." The key is to get the jury in a position to be alert to the nuances of language and the other features of the recordings.

[ED. NOTE: See Cultural Backgrounds and Experts Explain Influences and Effects, 6 BNA CrimPracMan 30 (1/22/92) (describing use of expert in conversational analysis who reviewed surveillance tapes and identified warnings of violence and hints of retribution to control the defendant); Conversational Analysis Can Turn Tape Cases Around, 4 BNA CRIMPRACMAN 221 (5/16/90).]

Analyzing surveillance techniques. Sometimes it is not apparent from the outset "who are the goodies and who are the baddies" and who was taping whom, but there often are cues in the language and in the sound quality, Guiberson said. For instance, if one voice stays steady throughout while other voices seem to come and go, that steady voice must belong to the person wearing the body wire.

Pay attention to subtleties, he said, noting an instance where the "government’s case was blown out of the water" by sound captured on tape of a drawer closing. The "acoustic trail [including] the signature of wood furniture" corroborated the lawyer/defendant's contention that any money that had been on the table had been taken off the table and concealed, and demonstrated that the informant was misrepresenting the sequence of events in what was alleged to be a cocaine sale.

While that case illustrated the importance of non-verbal content, in the 1979 murder-for-hire case of T. Cullen Davis, Davis would have gone to jail but for a single syllable, Guiberson said. Instead, he was acquitted after the defense showed that the imperative statement in the government transcript "Do the judge" was actually "He'd do the judge." The tape was marginally unintelligible but close scrutiny by a linguist pointed up the discrepancy. "In a single utterance, there may be total salvation for your client."

Such attention to detail is "not just obsessive-compulsive behavior but is really good lawyering," he said. He described a case in which it initially appeared that four people were standing together talking about a drug transaction, but analysis of subtle acoustical differences demonstrated that the police officer/defendant and one other person were not proximate to the person wearing the wire. Particularly since the defendant was shown to have a hearing disability, he would not necessarily have heard the conversation, said Guiberson, and an inept transcription would not have revealed that there were actually two conversation going on at the same time.

Analyzing conversations. In analyzing undercover operations, the first thing to understand is "where the agent is coming from" the agent or informant knows there is a tape being made for the purpose of achieving a conviction and has been schooled on the progress of the undercover operation, said Guiberson. While "your client has no clue as to what he said to someone's cousin Luigi at the fish market six months ago," the agent knows every word that was uttered during that conversation and is prepared to exploit that knowledge. A conversation that you think is occurring for its own benefit" may in fact be "a contrivance intended to produce language on the tapes.

The defense attorney must make the jury conceive what it was like to be in the situation of the target, where the agent was controlling the course of the conversation. For instance, said Guiberson, the agent will initiate certain topics of conversation and will interrupt the target if the target strays. If the client starts to say "I don't know what it is about," he or she "will not get that statement out. That will not be fully articulated on the tape," said Guiberson. While the government may claim coincidence, the defense attorney has to show the jury that the agents are "guilty of no fair play," that they use "calculated, manipulative techniques to keep [targets] from saying things that will exonerate them.

Guiberson said he has seen the same techniques used in interrogation situations. Describing the police interrogation of the "most psychotic individual I have ever seen," a young woman who was accused of killing her baby, he said that every time she attempted to talk about the evil spirits controlling her or the demon within her baby that she was trying to exorcise, the interrogating officers would interrupt her or change the subject. They "never let her full delusional state" come out, he said, although a spontaneous occurrence during the interrogation showed that she was not faking. When the computer printer started making noise, she leapt from her chair, screaming "It's a dog!" She was found not guilty by reason of insanity.

He also depicted undercover agents as "striving for a sufficient degree of ambiguity that will allow them to reinterpret the conversation in such a way as to serve the interest of the prosecutor at a later date." The agent may ask, "Do you think you can do the thing we talked about?" But will write it up in the written report as "the subject acknowledged that."

If the government is shown to be "sloppy, derelict, or aggressive" in its undercover techniques, however, this can provide a "feast for the accused" in demonstrating that the taped evidence is "not authentic in that it is not a reflection of true events."

Another "cruel trick" is to refer to a previous conversation that was not recorded but contains an "extreme unpleasant allusion," for example, "do you remember what you told me about holding the kindergarten students hostage with bombs?" Although there is no way of knowing whether the conversation ever occurred, since it was not recorded, it is introduced in court as if it were a fact, said Guiberson stressing the need to flesh out for the jury the "depth of manipulation being waged through this technique."

Even if the best outcome for the defense might fall short of acquittal, the tape might suggest mitigating circumstances such as quasi-entrapment, lack of prior involvement in trafficking or drug abuse, emotional dependency on other principals, or diminished intellectual capacity that would alter the punishment range said Guiberson. In his written materials, he posed the following questions. Do the tapes work for the defendant in demonstrating spontaneous rather than premeditated behavior? Do the tapes show your client's efforts to discourage or inhibit others in the commission of offenses? Can you use your knowledge of how undercover agents work to alert the court to how undercover taping creates an artificial situation for which the defendant is accountable, but not responsible?

Producing a transcript. Characterizing the transcript provided by the government as "not a transcript [but] a device intended to convict your client," Guiberson said that the defense attorney must invest the necessary time to assure that it has an accurate transcript. "Sometimes [it is] more work than you can do, more than your client can pay for," he said, suggesting that if necessary, transcripts should be done on a priority basis. If time and money are limited, create a list of priorities: (1) conversations in which your client's voice is heard, (2) conversations with references to the client (3) others' conversations between the first and last of the client's conversations, (4) "justification for investigation" conversations, and (5) other overt acts.

Guiberson issued a special warning as to foreign language transcripts. Avoid having the government transcriber jump from the foreign language straight to English. The foreign language must be transcribed first in that language, and then the transcription translated into English, he said, thereby avoiding compounded errors. He also commented that "there's something about getting a check from the government that makes you transcribe things that make [the client] guilty."