Tapes and Transcripts in Federal Court

By Robert S. Bennett

Recent decisions of the United States Court of Appeals for the Fifth Circuit have provided the trial attorney with the proper procedures for presenting tape recordings and transcripts In Federal court. By following these decisions, the trial attorney can expedite a trial and help eliminate any problems, which would cause the case to be retried. Although the use of tape recordings is more prevalent in criminal cases, the procedures to be discussed also have application in civil cases.

Under normal circumstances, recordings are produced in three ways: (1) court authorized wiretaps of telephone conversations; (2) consensual telephone conversations: and (3) body recorders.  Within the last two years In San Antonio, Texas, the Federal government. In three separate Investigations has indicted 22 Individuals by the use of court-authorized wiretaps of telephone conversations. These telephone conversations were recorded, and transcripts were prepared from the recordings. Numerous other cases were investigated by the use of body mikes and consensual telephone Nations.

A consensual telephone conversation occurs when two Individuals talk on a telephone and one party records or gives his permission to record the conversation: the resulting tape can be Introduced Into evidence. This is probably the most common method of producing tape recordings.

Finally, a person can be equipped with a tape recorder or a body mike either to record a conversation or to transmit the conversation to a receiver for recording.

There has been one recent Fifth Circuit opinion which directly held that the Jury would be allowed to replay a tape which was in evidence in the jury room. The one problem with the decision is that there is no indication whether or not a stipulation of admissibility was agreed upon. The Court did say, however, that it was “within the trial court's discretion to decide whether secondary exhibits should accompany the jury into the jury room.” 33

If the parties cannot agree to the identification of the voices on the recording by means of a stipulation, there are other means to establish the identity of the participants Federal Rule of Evidence 901(b) states.

(5) Voice Identification.Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

The identification of the participants' voices may be predicated upon face-to-face conversations and also circumstantial evidence alone. Under the general rule, testimony by a witness that he recognized the accused by his voice is admissible in evidence provided only that the witness has some basis for comparison of the accused voice with the voice which identifies as the accused ¹⁴ The courts have consistently upheld face-to-face conversations as sufficient basis for voice identification. ¹⁵

In all cases the degree of familiarity with the defendant’s voice has varied. It does not seem to matter when the witness became familiar with the voice in question. In the Ramos case, supra, Judge Rayfiel deemed sufficient a one-hour conversation by the agent with the defendant prior to the monitored conversation in question. In the Mora case, supra, the personal confrontation between agent and accused took place after the overheard conversations. Similarly. In the McCartney case, supra, the agent's personal conversation with the defendant took place after the overheard conversations.

The Easterday case, supra, is significant because there the witness testified only that he thought the voice on the phone was that of the defendant, although he testified that he had heard the defendant speak on several occasions.

Furthermore, circumstantial evidence alone may establish the identity of a defendant’s voice sufficient to enable a jury to consider It. ¹⁶

United States v. Carba.¹⁷ an appeal from the Hobbs Act conviction, the decision of the trial court to allow into evidence testimony concerning a telephone conversation with someone not identified by the witness as the defendant was upheld.

The fact that Chagin could not identify the speaker does not necessarily render this testimony inadmissiblIf identity could be found by the jury from other circumstances, admission of the testimony was proper. ¹⁸ Id, at 743.

The Fifth Circuit affirmed a narcotics conviction In which circumstantial evidence was introduced.In Palos v. United States. ¹⁹the court stated:

The second alleged error is that testimony relating to the monitored telephone call was improperly admitted because the government agent who testified could not identify the voice of the person called as that of Palos. Circumstantial evidence however can be used to establish the identity of the person called [citing Carbo, supra. and Morton v. United States, 60 F.2d 696 (7th Cir. 1932)). Here, Villar dialed a number registered to the appellant. When the phone was answered. Villar asked "Palitos?" (a name under which appellant was known) and received a response 'Yes. this is he". We think this evidence was sufficient to make out a prime facie case from which the jury could have concluded that the appellant was a party to the conversation.

In United States v. Ramsey. ²⁰, in which a conviction for violations of the narcotics laws was affirmed, the court took into consideration both direct and circumstantial evidence of voice Identification. In that case an agent testified that the voice he overheard on the telephone was that of the defendant. In affirming conviction the court noted that "there was ample evidence to support Its (agent's testimony) reliability.

It is vital to properly establish the identity of speakers. This part of the authenticating process with the previously discussed steps) can best handled by stipulation or at the pretrial hearing.

1. United States v. Mendoza. 574 F.2d 1373. (5th Cir. 1978)

2.  Katz v. United States. 389 U.S. 347 (1967).

3.  United States V. Santillo. 507 F.2d . 629 (5th Cir.) cert. denied sub nom. United States v.< Buche 421 US. 968 (1975).

4.  United States v. McMillan, 508 >F.2d 101 (8th Cir. 1974). cert. denied, 421 U.S. 916 (1975).Unites States v.-Biggins, 551.F.2d 64 (5th Cir. 1977).

5.  United States v. Rochan. 563 F.2d 1246 (5th Cir. 1977).

6.  United States v. Juarez, 573 F.2d 267 (5th Cir. 1978).>   United States V. Avile, 443 F-2d 792 (5^th Cir, 1971).

7.   Biggins. supra.

8.  United States v. Greenfield. 574 F.2d 305 (5th Cir. 1978).

9.  United States v. Onorl. 535 F.2d 938 (5th Cir. 1976).

10. Onorl, supra, 535 F-2d at 949.

11. United States v. McMillan, supra.

12. United States v. Carson. 464 F.2d 424 (2nd Cir.) cert. denied, 409 U.S. 949 (1972).

13. United States V. Zepedo-Santa. 569 F.2d 1386 (5^th Cir. 1978). Sea also United States v. Stone. 472 F-2d 909, 914 (5th Cir. 1974).

14. United States v. Ladd. 527 F.2d 1341 (5th Cir. 1976)./p>

15. United States v. Esterday. 57 F.2d 165, 167 (2^nd Cir.) cert. denied 286 U.S. 564 (1932).United States v. Mola. 251 F.2d 255, 257 (2^ndnbsp;  Cir. 1938): United Slates v. McCartney. 264 F.2d 628 (7th Cir.1959): United States v. Ramos, 158 F. Supp. 825 (D. N.Y. 1958).

16. Grogan V. United States. 394 F2d 287, 291 (5th Cir. 1967).

17. United States v, Carbo, 314 F.2d 718 lath Cir. 19611.

18.  Carbo. supra. 314 F.2d at 743.

19. Palos v. United States. 416 F.2d 438. 440 (5th Cir. 1969) cert. denied. 397 US. 980 (1970)

20. United States v. Ramsey, 374 F2d 192 (2nd Cir. 1967)

21.  Ramsey, supra. 374 F2d at 195.