Factors For Admitting “Partially Inaudible” Recordings

Eighth Circuit rules that partially inaudible recordings with a confidential informant may be admitted when the trial court finds that they “provide [the] jury with the ‘gist’ of the conversations” so that any inaudible portions do not “render” the tapes untrustworthy as a whole, in United States v. Trogdon, 575 F.3d 762 (8th Cir. Aug 6, 2009) (No. 08-2858)

Not all recordings for trial are clearly audible. As a pragmatic matter, some portions may be more audible than others. A number of factors may contribute to the quality of the recording including the recording device and external or environmental factors (such as a noisy restaurant or busy freeway in the background). At what point does a recording which contains inaudible portions become inadmissible? The Eighth Circuit reviewed a recent claim that the entire recording should have been excluded since some portions were inaudible.

In the case, defendant Trogdon was charged with conspiracy to distribute marijuana after an investigation. Police closed his operation, arresting various participants and receiving their cooperation. Ultimately one cooperating participant, named Chapman, agreed to cooperate and wear a recording device during two meetings with the defendant. The recording quality “turned out to be poor, however, because the wire was taped to Chapman's leg, and Chapman's movement during the encounter interfered with the recording process.” Trogdon, 575 F.3d at 764.

Before trial, the defendant filed a motion in limine to exclude the audiotape recordings of his two meetings with cooperating witness Chapman in their entirety. The trial court reserved ruling on the motion until any specific portions were offered at trial. At trial, the government introduced the recordings with a transcript. No objection was lodged by the defendant to the recordings. After his conviction, he renewed his challenged to the admission of the recordings based on inaudible passages.

The Eighth Circuit reviewed the issue for plain error since no objection was made during the trial. According to the circuit, the standard for assessing allegedly unintelligible tapes was clear. It amounted to whether the tapes as a whole were “audible enough to provide the jury with the ‘gist’ of the conversations,” as well as whether the defendant was given an “opportunity to offer his version of the inaudible portions so as to clear up whatever ambiguities the tapes might have raised.” Trogdon, 575 F.3d at 765 (citing United States v. Bell, 651 F.2d 1255, 1259 (8th Cir. 1981) (No error in admitting recordings where “the conversations were probative of material issues raised in the indictment, the tapes were audible enough to provide the jury with the ‘gist’ of the conversations, and the defendant was given every opportunity to offer his version of the inaudible portions so as to clear up whatever ambiguities the tapes might have raised.”); see also United States v. Huff, 959 F.2d 731, 737-38 (8th Cir. 1992) (“[T]he district court should assess whether the unintelligible portions of the tape are so substantial, in view of the purpose for which the tapes are offered, as to render the recording as a whole untrustworthy.”) (internal quotation omitted)).

The circuit’s application of this standard to the facts in Trogdon was rather straight-forward:

“We are satisfied that the district court did not commit plain error by admitting the recordings into evidence. In spite of the admittedly poor quality of the recordings, the conversations in the tapes were ‘audible enough to provide the jury with the ‘gist’ of the conversations.’ During one meeting, for example, Trogdon and Chapman can be heard discussing who may have leaked information to the police, whether either of them had reason to panic, and whether Trogdon's nephew was trustworthy. During a different meeting, Trogdon can be heard making a variety of probative statements, including that he believed he could trust his brother, that ‘nobody w[ould] know anything,’ that he was ‘just trying to work to get the deal,’ and that Chapman should ‘keep [his] eyes wide open’ and ‘look around.’ Given these and other audible statements, we conclude that the inaudible portions are not so pervasive as to render the recordings untrustworthy as a whole. Accordingly, the district court did not plainly err in admitting the recordings into evidence.”
Trogdon, 575 F.3d at 765 (citation omitted).

In light of the standard applied by the circuit in Trogdon, trial counsel should not concentrate exclusively or even particularly on the extent to which the recording is unintelligible. Rather, the focus is on whether what is audible makes for a “trustworthy” recording, one that provides the listener with the “gist” of what is being communicated.

Federal Rules of Evidence