Tape Recordings and Transcripts

Tape recordings: Foundational requirements for admission of a tape recording made in a custodial setting

• The admission of a sound recording should be preceded by a foundation disclosing the following:

(1) That it is authentic and correct;

(2) That the testimony elicited was freely and voluntarily made, without any kind of duress;

(3) That all required warnings were given and all necessary acknowledgments and waivers were knowingly and intelligently given;

(4) That it does not contain matter otherwise not admissible into evidence; and

(5) That it is of such clarity as to be intelligible and enlightening to the jury.

Lamar v. State, 282 N.E.2d 795, 800 (Ind. 1972)

Hall v. State, 897 N.E.2d 979, 981 (Ind. Ct. App. 2008)(quoting Lamar v. State, 282 N.E.2d 795, 800 (Ind. 1972))(“[In Lamar,] our Supreme Court held that the admission of a sound recording should be preceded by a foundation disclosing the following . . . .”)

• In Lamar, the Indiana Supreme Court laid out the following five foundational requirements for the admission of a tape recording into evidence . . . .

Apter v. Ross, 781 N.E.2d 744, 752 (Ind. Ct. App. 2003), trans. denied

• However, our supreme court later clarified that “[a]s to requirements (2) and (3), it is clear these apply only when the tape recording is of a statement by the accused made during a custodial interrogation such that the requirements of Miranda v. Arizona . . . and its progeny apply to the admission of the statement itself.”

Apter v. Ross, 781 N.E.2d 744, 752 (Ind. Ct. App. 2003), trans. denied(quoting Bryan v. State, 450 N.E.2d 53, 58-59 (Ind. 1983))

• [Thus], recordings of statements made in custodial settings may require additional foundation regarding the voluntariness of the statement.

Lahr v. State, 640 N.E.2d 756, 761 n. 4 (Ind. Ct. App. 1994), trans. denied

Tape recordings: Foundational requirements for admission of a tape recording made in a non-custodial setting

• The foundational requirements for the admission of a tape recording made in a non-custodial setting are: (1) that the recording is authentic and correct; (2) that it does not contain evidence otherwise inadmissible; and (3) that it be of such clarity as to be intelligible and enlightening to the jury.

Kidd v. State, 738 N.E.2d 1039, 1042 (Ind. 2000), reh’g denied(citing McCollum v. State, 582 N.E.2d 804, 811-12 (Ind. 1991), reh’g denied)

Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000)(citing McCollum v. State, 582 N.E.2d 804, 811-12 (Ind. 1991), reh’g denied)

Tape recordings: Interpretation of “non-custodial setting”

• By non-custodial setting, we mean circumstances other than the questioning of a witness or a criminal suspect while detained and with the advantages inherent in a custodial situation. A typical non-custodial recording would be a tape-recorded telephone conversation (e.g., a telephone ‘tap’ or ‘bug’) or a police informant equipped, as here, with a concealed radio transmitter (a ‘wire’) which broadcasts to a receiver connected to a tape recorder.

Lahr v. State, 640 N.E.2d 756, 761 n. 4 (Ind. Ct. App. 1994), trans. denied

Tape recordings: Authenticity and correctness

• Writings and recordings must be authenticated pursuant to Indiana Evidence Rule 901(a) before being admitted.

Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied

• Identification of the persons whose voices are on a tape recording is required for the recording to be admissible.

Atkins v. State, 499 N.E.2d 1180, 1183 (Ind. Ct. App. 1986)(citing Resnover v. State, 460 N.E.2d 922, 933-34 (Ind. 1984), reh’g denied, cert. denied, 469 U.S. 873 (1984))

See Johnson v. State, 699 N.E.2d 746, 750 (Ind. Ct. App. 1998)(“A recording is not admissible unless the voices contained thereon are identified.”)

• Identification, however, may be established by circumstantial evidence.

Atkins v. State, 499 N.E.2d 1180, 1183 (Ind. Ct. App. 1986)(citing Reed v. State, 491 N.E.2d 182, 186 (Ind. 1986))

See Johnson v. State, 699 N.E.2d 746, 750 (Ind. Ct. App. 1998)(“However, circumstantial evidence may be utilized for identification purposes.”)

• For more information about authenticating evidence, please review Authentication.

Tape recordings: Clarity of the recording

• To be admissible at trial, a recording must be of such clarity as to be intelligible and enlightening to the jury.

Dearman v. State, 743 N.E.2d 757, 762 (Ind. 2001)(citing Lamar v. State, 282 N.E.2d 795, 800 (Ind. 1972))

See Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994), trans. denied(citing McCollum v. State, 582 N.E.2d 804, 811-12 (Ind. 1991), reh’g denied)(footnote omitted)(“A recording made in a non-custodial setting should be admitted into evidence only if it is of such clarity as to be intelligible and enlightening to the jury.”)

• However, every word of a recording need not be intelligible.

Dearman v. State, 743 N.E.2d 757, 762 (Ind. 2001)(citing Patton v. State, 501 N.E.2d 436, 438 (Ind. 1986), reh’g denied)

See Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994), trans. denied(citing Hestand v. State, 440 N.E.2d 1121, 1122 (Ind. 1982))(“Every word on the tape need not be intelligible for the tape to be admissible.”)

See also Newman v. State, 751 N.E.2d 265, 270 (Ind. Ct. App. 2001), trans. denied(citing Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994), trans. denied)(“In order for a tape to be admissible, every word does not have to be intelligible.”)

• Rather, the tape recording, taken as a whole, must be of such clarity and completeness to preempt speculation in the minds of the jurors as to its content.

Dearman v. State, 743 N.E.2d 757, 762 (Ind. 2001)(citing Patton v. State, 501 N.E.2d 436, 438 (Ind. 1986), reh’g denied)

See Newman v. State, 751 N.E.2d 265, 270 (Ind. Ct. App. 2001), trans. denied(citing Brown v. State, 577 N.E.2d 221, 231 (Ind. 1991), reh’g denied, cert. denied, 506 U.S. 833 (1992))(“It is only necessary that the tape, when taken as a whole, does not lead the jury to speculate about its contents.”)

See also Hall v. State, 897 N.E.2d 979, 981 (Ind. Ct. App. 2008)(citing Brown v. State, 577 N.E.2d 221, 230 (Ind. 1991), reh’g denied, cert. denied, 506 U.S. 833 (1992))(“Perfect quality is not required; rather, we require only that, taken as a whole, the recording must be of such clarity that it does not lead the jury to speculate about its contents.”)

• Equivalent clarity is required of tapes made in both custodial and non-custodial settings.

Lahr v. State, 640 N.E.2d 756, 761 n.4 (Ind. Ct. App. 1994), trans. denied

Compare McCollum v. State, 582 N.E.2d 804, 811-12 (Ind. 1991), reh’g denied(recording of non-custodial telephone conversation admissible only if “of such clarity as to be intelligible and enlightening to the jury”), with Lamar v. State, 282 N.E.2d 795, 800 (Ind. 1972)(recording of custodial interrogation must be “of such clarity as to be intelligible and enlightening to the jury.”)

• [However], the standard of quality expected of a recording in an interrogation room cannot be used to judge a recording of a person wearing a “bug.” Because of clothing worn over the microphone and [the defendant’s brother] moving about in and out of the car, interference and static on the tape were inevitable.

Fassoth v. State, 525 N.E.2d 318, 324 (Ind. 1988)

See Kidd v. State, 738 N.E.2d 1039, 1042 (Ind. 2000), reh’g denied(citing Fassoth v. State, 525 N.E.2d 318, 324 (Ind. 1988))(“[T]he standard of quality expected of a recording in an interrogation room cannot be used to judge a recording of a person wearing a wire transmitter.”)

See also Lahr v. State, 640 N.E.2d 756, 761 n.4 (Ind. Ct. App. 1994), trans. denied(citing Fassoth v. State, 525 N.E.2d 318, 324 (Ind. 1988))(“Our supreme court, however, has recognized that some static and interference is inevitable on a recording made through use of a concealed radio transmitter or ‘wire’.”)

• This rule requires that the audiotape be intelligible enough to be probative of the purpose for which it is being offered. And necessarily, the probative value must not be substantially outweighed by the danger of confusion or unfair prejudice.

Benavides v. State, 808 N.E.2d 708, 711 (Ind. Ct. App. 2004), trans. denied

• The vast majority of cases addressing whether an audiotape is intelligible and enlightening to the jury involve situations where the meaning of the words on the tape is the reason that the tape is probative, for example: custodial interrogations of defendants, defendants' statements to police, and confidential informants wearing wire transmitters.

Benavides v. State, 808 N.E.2d 708, 711 (Ind. Ct. App. 2004), trans. denied

Tape recordings: Discretion of the trial court

• The trial court has wide discretion in deciding whether to admit a tape recording as evidence.

Dearman v. State, 743 N.E.2d 757, 762 (Ind. 2001)(citing McCollum v. State, 582 N.E.2d 804, 812 (Ind. 1991), reh’g denied)

See Hall v. State, 897 N.E.2d 979, 981 (Ind. Ct. App. 2008)(citing Dearman v. State, 743 N.E.2d 757, 762 (Ind. 2001))(“A trial court has wide discretion in deciding whether or not to admit a sound recording into evidence.”)

See also Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994), trans. denied(citing Sharp v. State, 534 N.E.2d 708, 712 (Ind. 1989), reh’g denied, cert. denied, 494 U.S. 1031 (1990))(“The trial court has wide discretion in the admission of audio tapes.”)

Transcripts: Background information

• In Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983), this Court set forth the standard for the use of transcripts of taped statements at trial, adopting the standard enunciated by the Eighth Circuit in United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975).

Tobar v. State, 740 N.E.2d 106, 107 (Ind. 2000)

See Blanchard v. State, 802 N.E.2d 14, 29-30 (Ind. Ct. App. 2004)(“Our Supreme Court outlined the appropriate standard for the use of transcripts of taped statements at trial in Bryan.”)

See also Roby v. State, 742 N.E.2d 505, 507 (Ind. 2001)(“In Bryan, this Court outlined the appropriate standard for the use of transcripts of taped statements at trial.”)

Transcripts: Best evidence rule

• The best evidence of the statement or conversation remains the tape itself.

Tobar v. State, 740 N.E.2d 106, 107 (Ind. 2000)

See Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)(quoting United States v. McMillan, 508 F.2d 101, 105 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975))(“‘The best evidence of the conversation is the tape itself . . . .’”)

See also Wade v. State, 490 N.E.2d 1097, 1105 (Ind. 1986)(citing Duncanson v. State, 391 N.E.2d 1157, 1163 (Ind. Ct. App. 1979), reh’g denied, trans. denied)(“The best evidence of a conversation is a clearly audible tape recording of it.”)

• For more information on the best evidence rule, please review Best Evidence Rule.

• However, there are exceptions to this rule, such as when the recording is lost.

Wade v. State, 490 N.E.2d 1097, 1105 (Ind. 1986)

Transcripts: Accuracy

• “[T]he transcript should normally be used only after the defendant has had an opportunity to verify its accuracy and then only to assist the jury as it listens to the tape.”

Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)(quoting United States v. McMillan, 508 F.2d 101, 105 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975))

Small v. State, 736 N.E.2d 742, 748 (Ind. 2000)(citing Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983))

Seay v. State, 529 N.E.2d 106, 109 (Ind. 1988)(“We held in Bryan v. State that a transcript should normally be used only after the defendant has had an opportunity to verify its accuracy and then only to assist the jury as it listens to the tape.”)

• “If accuracy remains an issue, a foundation may first be laid by having the person who prepared the transcripts testify he has listened to the recordings and accurately transcribed their contents.”

Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)(quoting United States v. McMillan, 508 F.2d 101, 105 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975))

Seay v. State, 529 N.E.2d 106, 109 (Ind. 1988)

See Tingle v. State, 632 N.E.2d 345, 355 (Ind. 1994)(“[W]here accuracy is an issue, the person who prepared the transcript must testify to verify that the transcript is an accurate recital of the recorded conversation.”)

Transcripts: Use as an aid to the jury

• In Bryan, this Court concluded that the use of a transcript to assist jurors in understanding a recording that is played simultaneously is proper.

Tobar v. State, 740 N.E.2d 106, 107 (Ind. 2000)(citing Bryan v. State, 450 N.E.2d 53, 60 (Ind. 1983))

Blanchard v. State, 802 N.E.2d 14, 30 (Ind. Ct. App. 2004)(citing Bryan v. State, 450 N.E.2d 53, 60 (Ind. 1983))

• “Because the need for transcripts is generally caused by two circumstances, inaudibility of portions of the tape under the circumstances under which it will be replayed or the need to identify the speakers, it may be appropriate, in the sound discretion of the trial judge, to furnish the jurors with copies of a transcript to assist them in listening to the tapes. In the ordinary case this will not be prejudicially cumulative.”

Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)(quoting United States v. McMillan, 508 F.2d 101, 105 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975)(citing Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967), cert. denied, 390 U.S. 1005 (1968)))

Small v. State, 736 N.E.2d 742, 748 (Ind. 2000)(quoting Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983))

• “Transcripts should ordinarily not be read to the jury or given independent weight.”

Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)(quoting United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975))

• “The trial judge should carefully instruct the jury that differences in meaning may be caused by such factors as the inflection in a speaker's voice or inaccuracies in the transcript and that they should, therefore, rely on what they hear rather than on what they read when there is a difference.”

Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)(quoting United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975))

Small v. State, 736 N.E.2d 742, 748 (Ind. 2000)(quoting Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983))

See Blanchard v. State, 802 N.E.2d 14, 30 (Ind. Ct. App. 2004)(quoting Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983))(“If a transcript is used as an aid, the trial court must instruct the jury that the transcript should not be given independent weight and that jurors are to ‘rely on what they hear rather than on what they read when there is a difference.’”)

Transcripts: Admission as substantive evidence

• “Transcripts should ordinarily not be admitted into evidence unless both sides stipulate to their accuracy and agree to their use as evidence.”

Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983)(quoting United States v. McMillan, 508 F.2d 101, 106 (8th Cir. 1974), cert. denied, 421 U.S. 916 (1975))

Tobar v. State, 740 N.E.2d 106, 107 (Ind. 2000)(quoting Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983))

Small v. State, 736 N.E.2d 742, 748 (Ind. 2000)(citing Bryan v. State, 450 N.E.2d 53, 59 (Ind. 1983))

• [B]ecause the defendant had not explicitly agreed to the admission of the transcript into evidence, it was error for the transcript to be admitted as an exhibit as opposed to its use purely as an aid in understanding inaudible portions of the recorded statement.

Tobar v. State, 740 N.E.2d 106, 108 (Ind. 2000)(citing Small v. State, 736 N.E.2d 742, 748-49 (Ind. 2000))

Blanchard v. State, 802 N.E.2d 14, 30 (Ind. Ct. App. 2004)(“As our supreme court held in Small v. State, because [the defendant] did not explicitly agree to the admission of the transcript into evidence, it was error for the transcript to be admitted into evidence as an exhibit, as opposed to its use purely as an aid in understanding inaudible portions of the recorded statement.”)

Transcripts: Discretion of the trial court

• Under Bryan, the trial court has the discretion to allow the use of a transcript as an aid for jurors in understanding taped statements.

Tobar v. State, 740 N.E.2d 106, 107 (Ind. 2000)

Tape recordings and transcripts in foreign languages: Transcripts

• The general requirement of Evidence Rule 1002 is that, to prove the content of a recording, the original recording is required. Here, under the reasonable assumption that the jury did not comprehend Spanish, the original recording, being solely in Spanish, would not likely convey to the jury the content of the recorded conversations. Applying the rule to limit the evidence of content to the original Spanish recordings would not serve the purpose of the rule because it could not prove any content to the jury. We thus hold that the admission into evidence of foreign language translation transcripts is not governed by Evidence Rule 1002.

Romo v. State, 941 N.E.2d 504, 508 (Ind. 2011)(emphasis added)

• For more information on the best evidence rule, please review Best Evidence Rule.

• There remains, however, the existing precedent of this Court noted in Small, Tobar, and Roby, each of which found trial court error in admitting a transcript as substantive evidence as opposed to admitting it as an aid to the jury in interpreting a recorded statement. But none of these cases involved a translation transcript of a statement recorded in a foreign language. In such circumstances, it is the English language transcript, not the foreign language recording, that will be the overwhelming, if not exclusive, source of relevant, probative evidence. Refusing to consider such translation transcripts as substantive evidence is contrary to the aspiration of the Indiana Rules of Evidence favoring “promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” We hold that English language translation transcripts of statements recorded in a foreign language, if otherwise admissible, may properly be considered as substantive evidence.

Romo v. State, 941 N.E.2d 504, 508 (Ind. 2011)(quoting Evid. R. 102)(emphasis added)

Tape recordings and transcripts in foreign languages: Tape recordings

• Expediency undoubtedly results when a jury is spared from listening to foreign-language recordings, and practical usefulness is served by providing them instead with reliable English translations or translation transcripts. But we value even higher the capacity of jurors to apply their sensing and intuition faculties in reaching their determinations. Some of our federal colleagues have expressed reservations about the ability of a jury fluent in only English to meaningfully and reliably interpret oral demeanor, tone, inflection, hesitation, enthusiasm, reluctance, submission . . . . We are not persuaded that such discernable clues regarding demeanor, which could be significant in individual cases, are necessarily impervious to listeners who do not comprehend the language spoken. This consideration would be particularly relevant if we were considering a video recording of statements made in a foreign language.

Romo v. State, 941 N.E.2d 504, 508-09 (Ind. 2011)

• Upon request of a party, a trial court should play for the jury such recording, if otherwise admissible. A refusal to do so will be reviewed on appeal for abuse of discretion, including a consideration of the nature of the request and the proffered reasons for playing the recording.

Romo v. State, 941 N.E.2d 504, 509 (Ind. 2011)

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