16.74 - 2. The Audibility Hearing

• Jurisdiction: New York

2. The Audibility Hearing

An audibility hearing should kill two birds with one stone. The trial judge, while listening to a tape recording for audibility purposes, should simultaneously compare a typed transcript of its contents. The trial judge may order changes in the transcript as he listens to the recording, order that certain words or phrases are to be replaced by the word “[inaudible]” but otherwise rule that—subject to competent evidentiary foundation at trial, supra—the transcript may be given to the jury as an aid in listening to the recording.²⁴⁵⁴ A tape recording audibility or videotape hearing is in keeping with the court’s duty to evaluate the admissibility of such evidence.²⁴⁵⁵

The question of whether a tape-recorded conversation is sufficiently audible to be probative and therefore admissible in evidence is a matter within the sound discretion of the trial judge.²⁴⁵⁶ It is a discretion circumscribed by law. As to partial inaudibility or incompleteness of a tape recording, there is no all-embracing rule. There is no more reason for total exclusion of an imperfectly recorded conversation than there is for excluding the testimony of a witness who overheard the conversation because his memory is less than perfect.²⁴⁵⁷ Admissibility hinges not on how much of a taped conversation is audible—a mere qualitative analysis—but on whether those portions that are audible are also probative. A tape recording of poor quality may be a half-hour in duration, or much more, with an unambiguously clear and audible bribe offer, and its acceptance coming in the last minute or so.²⁴⁵⁸ Half of a tape may be unplayable or defective with the other half an intelligible and accurate capturing of the conversation it purports to reproduce.²⁴⁵⁹ Only when the unintelligible portions of a tape recording are qualitatively so substantial that they render it more misleading than probative or require a jury to speculate as to its contents, is inadmissibility the conclusion.²⁴⁶⁰

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Notes:

^[2454] . People v. Feld, 305 N.Y. 322, 113 N.E.2d 440 (1953); People v. Williams, 281 A.D.2d 933, 722 N.Y.S.2d 683 (4th Dep’t 2001); accord United States v. Turner, 528 F.2d 143, 167 (9th Cir. 1975).

^[2455] . People v. Gholam, 99 A.D.3d 441, 443, 951 N.Y.S.2d 526 (1st Dep’t 2012).

^[2456] . People v. Lubow, 29 N.Y.2d 58, 68, 323 N.Y.S.2d 829 (1971); accord United States v. Bryant, 480 F.2d 785, 790 (2d Cir. 1973); United States v. Weiser, 428 F.2d 932, 937 (2d Cir. 1969); United States v...