Tuning the audio
or video tapes in a criminal prosecution means finding how the recorded
evidence can be harmonized with the defense case. The reliability and authority
which juries ascribe to recorded evidence compels defense lawyers to co-opt
the strengths of the evidence, instead of trying to oppose it. Tuning into
the way each recording can strengthen rather than weaken, the defense must
be the focus of every lawyer facing tape evidence in court.
Tapes don't easily give
up the answer to the question "How can I make this tape my client's evidence
and not evidence for the prosecution? They have to be coddled and coaxed,
organized and analyzed, digitized and deconstructed before counsel can
expect to understand all the implications behind each taped word and deed.
Technology plays a part in this process, but so does ingenuity and original
thinking. It takes far more physical and mental labor on the part of defense
counsel to invert, divert and subvert the presumptively incriminating
slant a tape will possess when first played to the jury than it will take
the prosecutor to offer the evidence and await a guilty verdict. Since
prosecutors always believe their recorded evidence is their incontrovertible
ace in the hole, they do not grapple at every level with this evidence
as we must if we want to succeed in making it serve our client's defense.
It is the recognition that there are many dimensions to an audio or video
taped conversation's technical, linguistic and behavioral content that
is the defense advocate's best advantage over the prosecution. These are
the avenues of opportunity for defense counsel that these materials will
address.
