Discovery and Admissibility of Sound Recordings and Their Transcripts
| Publication year | 1985 |
| Pages | 999 |
1985, June, Pg. 999. Discovery and Admissibility of Sound Recordings and Their Transcripts
Sound recordings are frequently offered in evidence in criminal trials, usually by the prosecution. For this reason, this article is generally written from defense counsel's viewpoint. However, the law cited herein might also be relied upon by the prosecution, particularly if the defendant is seeking to introduce a sound recording.
Federal and Colorado statutes authorize law enforcement officers to obtain ex parte judicial orders for wiretapping and eavesdropping.(fn1) These statutes allow conversations to be recorded without the consent of any of the parties to the conversation if it is shown that probable cause exists to believe certain enumerated crimes have been, are being or will be committed. Furthermore, under both the Colorado and federal statutes,(fn2) a tape or sound recording may be legally made if one party to the conversation consents to the recording. An interesting exception to this rule, which has been carved out by Colorado case law,(fn3) states that an attorney commits an ethical violation under Code of Professional Responsibility DR 1-102 if a conversation is recorded without the permission of all parties to the conversation.
As soon as counsel discovers the existence of a tape recording made in connection with a client's case, he should quickly arrange to hear and make a copy of the tape. Counsel should first contact the prosecuting attorney in charge of the case and request an opportunity to do so. Usually, the tape recording is in the custody of the arresting officer or agency. The prosecuting attorney should, and normally will, facilitate this process.
If the law enforcement officer having custody of the sound recording is uncooperative about providing an opportunity to listen to and copy the tape, a motion to compel discovery is necessary.(fn4) A hearing on the motion to compel should be set well in advance of trial, since the argument in favor of the motion is that counsel needs to hear the tape properly to prepare for trial. The court may not consider the motion to be timely or to be made in good faith if counsel waits until trial or shortly before trial to make the motion.
Listening to sound recordings is usually a long and tedious job. Nevertheless, in the author's opinion, it is a serious mistake not to listen to such tapes because (1) they often contain crucial and damaging evidence which counsel should know of before proceeding to trial; (2) counsel may find that the tapes, or parts thereof, are inadmissible; or (3) the tapes may contain exculpatory evidence or statements consistent with the client's defense. A copy of the tape should be made so that counsel can review the evidence and make a transcript for trial.
A proper evidentiary foundation is necessary for the admissibility of a sound recording.(fn5) The party offering the tape must present "evidence sufficient to support a finding that the matter in question is what its proponent claims."(fn6) In addition, both the Colorado and Federal Rules of Evidence provide that the original tape recording be used if possible and that when telephone conversations are involved, evidence be offered as to the...
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