1. Meaningful access to recorded evidence

Access to tape evidence in the course of criminal discovery without duplication is meaningless access, since the intricacies of the evidence and its proper interpretation require far more time and careful review than is possible while listening to tape evidence in some prosecutor's office. No lawyer can judge the credibility of recorded evidence intuitively, from the seat of his trousers, as one can a witness.

2. The duplication process

1. Pitfalls of accepting prosecution duplications

Even if you are not enthusiastic about spending your days watching the little wheels turn on your tape cassette recorder, delegating the reproduction of tapes to a prosecution agent has several downsides that are worth considering.

There are many advantages to "do-it-yourself" defense duping with a lawyer present. In cases in which I am hired, I always try to participate in the duping process personally, not just because I'm technically proficient in doing that work, but because as an attorney in the case I find the time well spent.

3. Planning the duplication

The key to reaping the benefits of your time investment in duplicating from the original tapes is careful advance preparation and planning before the recording session. Without a step-by-step plan you will be wasting your time and risking your case prospects on botched tape duplicates.

4. Setting up to record

5. Recording procedures

In recent years, it has become technically feasible to record audio from tapes directly into laptop computers in the form of a computer file, most frequently in the ".wav file" format. While working with audio in digital form is highly desirable (more about this later), recording from an original audio tape to a computer presents significant difficulties. The storage demands required to create these files will quickly overcome a laptop's hard drive, and even external storage media like zip drives are impractical for more than a few short conversations.

Rather than attempt to move in one step from the tape recorder to the computer, our practice is now to record with digital audio tape recorders and then create a computer audio file back at the office, where our servers provide serious digital storage capacity. The "dupe-to-dupe" problem doesn't exist in digital media, so the sound file in my computer has the same quality as the DAT, which has the same quality as the original back in the evidence safe. The computer audio file can be routinely duplicated without decreased quality.

On the video side, the extreme demands of video image storage and digital video's appetite for very expensive hardware currently make digital video duplication a professional-level enterprise with a sizeable overhead of technology expertise. In a few years, this will not be the case. Today, analog video duplicators such as the GO VIDEO product line afford lawyers an excellent duplication option for video evidence. PCs do allow us to capture images from videos and manipulate them to reveal obscure content. This home-grown enhancement is useful for demonstration purposes, but shouldn't be accepted as a substitute for professional-quality digital enhancement of motion video images.

1. The characteristics of mini-recorders

A mini-recorder, for your purposes, is any miniature recording device capable of being readily concealed. Included in this category are Nagras, which are professional-quality Swiss tape recorders originally designed for location motion picture production but now used primarily by law enforcement. Also, consider any handheld standard cassette or mini-cassette recorder to be in this category. Another product likely to fit in this class is the small-scale digital audio tape recorder that even law enforcement will soon develop enough good sense to widely use.

2. The characteristics of transmitters

Tapes produced by recorders receiving radio signals from remote miniature microphones transmitting a signal to the recorder are called transmitter tapes. They also have some unique features.

3. The characteristics of telephone recordings

4. The characteristics of fixed-point intercepts

A fixed-point intercept is one in which a microphone(s), or these days video cameras at fixed points, are installed in a targeted area such as an apartment, hotel room or lobby, a public place, or an automobile.

1. Predicate and contextual time fixes

Time fixes are customarily given in the agent's or informant's predicate at the beginning of a consensually recorded conversation. A monitoring log in a wiretap case establishes the start times for monitored calls. In the context of recorded conversation, agents either intentionally or coincidentally ask for the time, or overhear the time being given, as on a car radio.

2. Playing time and down time

The duration of a tape, when compared with the elapsed time between two recorded time fixes, may prove irrefutably that a recording was incomplete or interrupted. It is very helpful to obtain long-distance logs of call duration where there are disputes over how long a recorded telephone conversation went on before or after the recorder started or stopped.

3. Contextual aural and language cues

Background noises and events that are time-bound, such as regularly scheduled television shows, radio play lists and news broadcasts provide specific details fixing the time of the recording.

4. Stringing time segments

It is often difficult to visualize overlapping conversations in time. Charting the timelines of such conversations will show you the chronological relationships between different conversations, locations, and recorded events.

5. Overlapping passages or repeating text

Statements made in the course of recorded conversations can often disclose the true sequence of events by referring back to a meeting or a conversation, or travel that appears on a tape that is recorded as having occurred later than the first tape.

1. Who's recording whom (with how many recordings and what kind of recorders)

Early on in a sting case, it is not always apparent who had the recorders strapped to their backsides. The matter of who is recording whom is often of keen interest to your client. The most present voice on the recorder, especially when consistent in transit from one place to another, is the person wearing the recorder, even if it turns out to be your mother. If the recorder is carried in a briefcase, or concealed in any other way than on the person of the informant, you will have to rely on context clues like, "Nice purse, Mom. Isn't that new?" "Why, yes, son, do you mind if I put it up on your desk while we count the money out loud?"

2. Agent communications

What the agents say to each other during their unguarded moments on tape can be very useful in understanding their surveillance tape techniques. A few examples:

3. Simultaneous recordings

4. Phantom tapes and phantom recorders

1. Technical issues in tape cases

The most common technical issues are:

2. Technical experts provide narrow defenses

The most overlooked aspect of putting your eggs in a technical expert's basket is that they only deal with a narrow question in which even the best answer won't amount to a complete defense. It is always best to think of a technical expert as one arrow in your defense quiver, and budget accordingly, rather than spend all you've got hoping for home-run expert testimony.

3. First decide on a strategic context for technical conclusions

Before making a decision on retaining a technical expert, spend some time with your tapes. Decide how you might best defend your client if the expert finds what you want, or what you don't want. Appraise whether that single fact is critical to the outcome of the case.

4. Evaluate whether the lawyer or a lay witness can accomplish as much while risking less

There is a downside to using an expert witness. It is called cross-examination. Think through whether you can get the same point across as a lawyer in argument, or through another witness, without using the expert as a witness.

5. Choose an expert after you choose a defense

Don't let a technical expert who works with dials and oscilloscopes establish what your client's defense should be. Set the limits on the scope of the conclusions the expert should reach somewhere just inside this propeller-headed professor's idea of himself as the next Clarence Darrow.

1. Do your own homework before asking an expert to grade your papers

If you learn the vocabulary and become familiar with the technical side of tapes, you can exploit this expertise to a fuller extent than if you allow him to define your client's problems.

Provide the expert with the logistic support needed to make his job simple and specific. You can usually save money by having the expert do only what he is professionally trained to do. Don't have your acoustician prepare transcripts, or have the sound engineer organize your tape cassettes. If his or her task as an expert is circumscribed, you will usually receive more value for your money.

2. A technical expert is not a lawyer surrogate

There is no way for somebody who does voice analysis for a living or checks ferrous oxide patterns on tape strips to have acquired the background to contribute to your client's whole defense theory. If your expert thinks that is what makes his forensic work worthwhile, get another expert.

3. Submit to the expert only what evidence is necessary to reach the conclusion you seek

Don't ask the expert to review ten hours of tape to form a conclusion about a ten-second gap.

4. Determine as soon as possible whether an expert is a consultant or a witness

How you use him early depends greatly on how you intend to use him in the end. If you can obtain a preliminary opinion that your retained expert is likely to confirm, better to have that second opinion first before asking the opinion of your prospective witness.

1. Delay to gain the time to do it right

2. Organizing the tapes, transcripts, case documents

3. Prioritizing what can and cannot be done within the budget

4. Analyzing the contents of what you have organized

- have more to do with presenting than distorting the evidence (not a defense lawyer's "dirty trick")

1. One instance in which court-ordered prosecution to transcribe all tapes:

U.S. v. DeLuna (31 Criminal Law Reporter 2407, (8/25/82) (2,500 hours of taped conversation).

2. Move for funds to pay tape preparation costs when representing indigent clients

Court-appointed lawyers can make persuasive arguments that the requisite logistics of reviewing the massive recorded evidence renders effective assistance impossible without substantial financial assistance for the organization and analysis of the tapes. With these motions, you are fighting for the opportunity to provide a defense. Lose them and your client loses whatever defense existed in the voluminous recorded evidence made of his comings and goings, his own words and the words spoken by others about him.

The key concept is to put tape logistics in the center ring of the circus. If the court accepts the prosecution line that logistical issues surrounding tape cases are just trivial, non-substantive housecleaning matters, it won’t be the house but your client's clock that gets cleaned.

Never let the court underestimate what the defendant is dealing with in terms of the quantity and difficulty of preparing large numbers of taped conversations for trial. Get physical. Compel the court to visualize the physical scale of the job you have to do.

Detail specific quantities and the duration of tape evidence the defense must review and analyze.

Convert generalities like "lots of tapes" into specifics like "462.7 hours of tape."

Make the abstract concrete - instead of vague references to "thousands of pages" describe the stack of transcripts as "twelve feet high." Does the court expect defense counsel to absorb the page equivalent of two sets of encyclopedias before trial in ninety days?

Compare the time frame in which the defense has had the opportunity to review the recorded evidence with the duration of prosecution monitoring, analysis and review of tape evidence.

Extrapolate time necessary to complete preparation from test runs (how long it took you to organize, transcribe and understand X number of hours of tape, where X is the percentage of total tape to be reviewed).

Assert defense counsel's right and obligation to independently analyze recorded evidence, rather than adopt what the prosecution claims is relevant about the tapes.

Volunteer ex parte/in camera status reports to the court to show diligence and to show that no dilatory tactics are afoot. Bringing the judge into the tape organization loop compels the court to relate to the defense's tape logistics dilemma.

2. "Foreign language not spoken here"

Petition the court for translators who can double as transcribers, if needed.

If you've got problems with English on tape, imagine recordings in foreign languages. As our law enforcement is internationalized, we see more electronic surveillance involving non-English speaking targets. Where do you find expert transcribers that speak fluent Sicilian, or fluent Farsi, Urdu, or Cantonese except in the prosecution's service? Here is a strong justification for global prosecution transcription.

3. Move to exclude partial, edited, or inauthentic recordings

Specify where technical defects exist and any evident patterns that suggest intentional omissions or alterations. Weigh carefully whether the content of the tapes deals you a more severe blow than is dealt the prosecution who is attempting to present the jury with misbegotten tape evidence. If their ox is more goreable than yours is, consider allowing yourself the chance to impeach such tapes and the prosecution's motives for putting them before the jury.

4. Additional discovery

Demonstrate existence of other tapes from the tapes already provided by citing references or allusions to meetings or events not found on tapes delivered to the defendant. Document your claims using the recorded evidence you have.

Case preparation based on the organization of the full text of transcribed conversations permits a lawyer to add hierarchies of analysis and to discard them as the case develops in different directions from those he or she may have first anticipated.

2. Use objective criteria

Don't confuse organization with analysis. Grouping transcripts or references on a subjective basis, such as "good for us/bad for us," "ten worst/ten best," rating 1-10, etc., limits a lawyer's analysis to what he thought significant at one point in time rather than permitting him to reevaluate on the basis of subsequent developments in the case.

3. Be efficient

Because preparing tape evidence for trial is so labor-intensive and therefore expensive, you can't afford (i) to do anything twice, (ii) to do anything wrong once, (iii) to omit anything prematurely, or (iv) to make bad decisions in allocating available resources. In tape litigation, cost effective assistance of counsel is the only effective assistance of counsel. There is no such thing as last minute preparation in a tape case. Don't defer tape case organization.

1. Standard procedures

Beware of the "tender trap." Always double-check what the prosecution claims it produced against what it actually produced.

Fixing the blame on the prosecution for any shortfall in discovery, failure to meet pretrial deadlines and other half a loaf measures intended to stall your trial preparation requires an accurate diary of the tape discovery received and careful management of the work you perform.

3. Keeping track of the chain of custody

Who delivered and who received which tapes, transcripts, and materials?

4. Staff status checking

The tighter your control, the lower the toll. Discover the defense team's inadequate performance in tape organization before it deprives the client of an adequate defense.

In a large tape organization, you must know you're coming up short while there is still time to make adjustments and save money.

5. Beware the "parsimonious production"

The prosecution will give you only: (a) a chance to listen to tapes, (b) access to tapes/transcripts your client is on, (c) access to tapes/transcripts if you stipulate that they are correct, (d) cassettes if you pay, (e) transcripts if you pay, (f) supervised access to ELSUR during business hours, (g) only the tapes/transcripts the prosecution intends to use at trial.

6. What you need:

7. You need all the tapes, whether your client is recorded on them or not, because:

1. The importance of accurate transcripts

Realistically, it is impossible to review the recordings without transcripts.

The quality of transcription determines the degree of the defense lawyer's understanding of the recorded evidence (and the jury's understanding as well).

 

2. When the prosecution provides transcripts:

3. Doing your own transcripts: what to do if transcripts are not provided

Transcribe all conversations, if you can afford to. If you can't, here's what to transcribe and in what order:

a) Your client's conversations

Use your index and integrated database to highlight critical conversations or time periods.

 

4. The Art of Transcribing

Misinterpretation of a critical conversation because of poor transcription can distort the facts of the case, misguide counsel, and conceal the best available defense.

There is more to the transcription of undercover conversations than taking a memo; it is not for amateurs. Don't underestimate the skill required to do it right. Don't underestimate the value it has to the defense once it is done right.

Transcribers are only as good as the equipment they use to do their work. Transcription requires high-fidelity equipment and high-end computer technology to support the use of digital audio playback. Using computer audio files allows the transcriber to slow or speed up the recording at will, to change the audio characteristics to increase intelligibility and to efficiently move to different parts of long tapes.

1. Integrate electronic surveillance with all discovery documents

Assemble a chronology that identifies who, what, when, where and how for every time-based event described on tape or in print so that you may test to what extent conversations and actions correspond.

The prosecution usually bases its indices on the source (wiretap/ informant/agent/operation). The prosecution's organization of Title III information isn't the same organization the defense needs to evaluate the taped conversations. Sequence of recording is the better organizational scheme for the ultimate purpose of analyzing what is being said from meeting to meeting or call to call, particularly with undercover operations.

2. Review for discrepancies between affidavits, logs, periodic reports, requests for extensions, and other miscellaneous reports.

Compare and contrast all of the above with tape and transcript content and other investigative sources (FBI 302s, DEA 6s, surveillance data, defense investigation or client recollection).

Test the agent's description of the recorded events and compare it to the events recorded. Relate agent representations back into the tapes. Doing so will allow you to exploit inconsistencies between wiretap tapes and agent's characterizations of their content in reports to court.

1. Contamination

Recording agents want to take advantage of what is known in linguistics as the "contamination principle." Contamination means that a listener or a reader exposed to a sufficient quantity of information will confuse the source of the information. As the information increases in quantity, the listener's ability to discriminate, to identify the origins of that information in conversation, is diminished to the point that every member of the conversation is assumed to have provided that information and used that language. Contamination can be a matter as simple as the choice of words that a jury will ultimately attribute (erroneously) to a defendant, rather than to the undercover agent.

An example of contamination is often found in the use of violent or obscene language. You may find that the verbs of violence (kill, waste, blow their guts out, etc.) and the bad language (you know the words I mean) are being used predominantly by the police undercover informant, but being attributed by the jury to the defendant because it is he that is the focus of the accusations.

2. Topics

1. Dominant/passive role playing

The undercover artist will also introduce into recorded conversations statements expressing his own subordination to the target's every whim. An example would be "Give me a decision, when I call up, who you want me to give my share to, okay?" or "You tell me what to do, you're the quarterback."

The psychological effect on the jury is to subordinate the agent to his target's commands and to encourage the target to make statements that will demonstrate his commanding role. These sham directives create the impression of a dominant/passive relationship between the target and the recording agent or informant. They also serve the purpose of soliciting an overt act from the target that would not have been articulated but for the agent's imploring his target to tell him what to do, where to be and who to see.

2. Bad guy/good guy

3. Off-stage tenderizing

A psychological orientation is pressed upon a particular target so that when he or she appears in the recorded meeting, the behavior of the target will have been previously influenced "off stage" to encourage certain behavior consistent with the objectives of the undercover operation. For example, "You gotta talk tough with these guys"; "They won't take no for an answer"; "Don't disagree to their face. People from their part of the world would take that as an insult"; "This deal means a lot to me, so play along like I'm an important guy"; "You know I have good connections." Whether this occurs on tape or off tape, I call it "tenderizing the target." The agent tries to put his target in a state of mind that encourages a particular behavior in the critical conversation or meeting.

These tenderizing overtures may be negative or positive reinforcement. If they are negative, they are intended to create a mild condition of duress that restrains the target from disagreement, or any form of protest that would suggest his disinclination to participate in the scheme. If they are positive, they are in the nature of "They're gonna offer you a lot of money, and it's your decision. They may not do it now, but I know that there's a great deal of money in those pockets for you and your firm in a long-term relationship so don't blow it. They may seem a little rough at first, but they're just testing you." The effort, of course, is to prime the pump for the critical interaction, which is the focus of the undercover operation.

4. Exploiting professional responsibilities

In some cases, the undercover role of a prospective client is used against an attorney, accountant, tax counselor, or business advisor. These professional relationships are frequently exploited in undercover operations. For example: an attorney exposed to such statements as "This won't go any farther than you and I" accepts them as a request for the reaffirmation of the privilege. The professional reaffirms, "Oh, yes, you can count on that. It won't go any farther than me." Another example would be street idiom out of the client's mouth along the lines of "This conversation never happened," or "I never told you this." The lawyer response might well be "I understand." Such a response would be the attorney's demonstration of his ethical and professional responsibilities to keep confidences. The undercover strategy is to turn an obligation of confidence into a conspiracy of silence.

5. Institutional devices: the pincer operation

The more complicated undercover operations involve the simultaneous overt and covert investigation so that the two work in tandem against the target to apply pressure. An IRS audit of the target smuggler encourages more conversations with the undercover FBI agent posing as his accountant that are recorded to expand the range of his prosecutable offenses. Overt, external investigations open the floodgates of communication to undercover operatives posing in fiduciary relationships. If the undercover relationship won't generate culpable conversation, more pressure from the overt investigation is brought to bear.

1. Security anxieties

The most common of these techniques is the agent expression of "security anxiety." Conversations begin or end with the recording agent telling his target of the agent's own supposed anxieties about whether the conversation is being recorded. Statements like "You can't trust these phones," or "Is it safe to talk?" or "Call me from a pay phone" psychologically influence the juror listening to the tape to perceive any conversation that follows such statements as criminal and conspiratorial.

2. Personal safety concerns

Another ploy aimed right at the jury's heartstrings is the volunteering of statements on tape by the agent concerning how much jeopardy and stress his role is subjecting him to. Frequently, recording commences before the actual encounter with the target. In that interim, the agent will volunteer statements about his stress and anxiety for his personal safety that no one but the recorder is in a position to hear. But the jury hears those statements, of course, and perceives a threat to the agent or informant that taints their perception of the individual who the agent has yet to encounter.

1. Physical presence/location of recorder and target

Sometimes undercover agents engage in side conversations with another individual out of the hearing of the defendant. Because the microphone was placed on the informant, the tape recording and the transcript of the tape recording create the illusion that the conversation between two people was overheard and adopted by the defendant. The tape-recorded evidence offered against the defendant then includes conversations which did not take place within his hearing.

2. Strategic placement of fixed-point intercepts

A mike placed near one desk in an office suite will exaggerate the jury's perception of the role of the person heard most clearly from the vantage point of the bug, whether that individual was the focal point of the alleged conspiracy or merely had the misfortune of sitting at the most buggable desk.

A. Monitoring patterns in agent's wiretap minimization

Agents monitoring a wiretap case record as "non-pertinent" conversations in which their targets use the code words (so how come a code word for drugs on Tuesday is non-pertinent on Thursday?).

Relying on content analysis, inconsistent behavior in agents' decisions as to which conversations to record and which to minimize can demonstrate inconsistency and subjectivity in agents' interpretation of the events they are investigating.

B. Phone-use analysis

Is your client really running a five-state cocaine distribution ring from a telephone that his fourteen-year-old daughter is using 42% of the time?

C. Toll analysis

Note the frequency of calls between parties in a given period of time and the sequence of long-distance calls placed in relation to events occurring either on tape or off tape. Patterns of frequent or infrequent communication juxtaposed with events conspirators should be talking about may put your client more out than in.

D. Organizational analysis

How do you analyze where your client fits/doesn't fit into an organization, and whether it is a criminal organization or not?

1. Random access audio and video playback units

The most useful tool to use in presenting tape evidence to a jury is an audio or video deck that can randomly access particular passages of audio and video that you want to play, and do so in the order you prescribe. Most high-end video players can do this. For audio tapes, it is necessary to convert them into computer-based digital sound files to achieve flexibility in random accessing significant points within the conversation or in different conversations. The modern tape player for recorded evidence in court is a computer.

2. High power, lightweight

Whenever possible, obtain the highest-powered, smallest amplifiers. The physical weight and size of an amp do not always convert into high performance. Keep it simple and uncomplicated to handle.

3. Small size, big sound

When it comes to speakers, use more small speakers rather than fewer large ones. Choose an amp that will support four to eight high-quality speakers. Bose speakers are my personal choice because of their efficient form factor (which means they are little and sound big).

4. Have backup equipment

The cardinal rule of tape cases is that everything will break at least once, including your will to proceed. You will have more peace of mind waiting for all the bad things to happen if you know you have backups ready and available when they do.

 

1. Wiring the courtroom for sound

There is no great magic to installing sound equipment in court. Think of it as your living room, with a lot more wood furniture. The key is how and when you do it.

2. Wiring the courtroom for video

1. Principles of audio/video advocacy

- Be subtle: never over-install.

- Be separate and equal, or better.

- Be flexible and be entertaining.

- Be well-rehearsed.

1. Make reviewing the tapes an entertaining experience.

- Don’t bore anyone.

- Let your better organization embarrass the prosecution.

2. Make reviewing the tapes a learning experience.

- Play critical passages repeatedly.

- Make the jury feel like they are the real tape experts.

- Suggest quasi-entrapment, a tempting honey pot that might mitigate against harsh punishment?

1. Do the tapes work for the defendant in demonstrating spontaneous rather than premeditated behavior?

2. Do the tapes show your client's efforts to discourage or inhibit others in the commission of offenses?

3. 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?