Playing An Audio Tape During Closing Argument That Was Not Admitted At Trial

The jury is supposed to consider only admissible evidence. How does a court address the situation where one party plays a recording during closing argument that was not admitted at trial? The First Circuit considered the impact of the recording and curative instruction given by the trial court, in United States v. Rojas, _ F.3d _ (1st Cir. July 7, 2014) (No. 13-1352)

The First Circuit recently reviewed a case in which the prosecutor inadvertently included an audio recording that was not admitted at trial.

Trial Court Proceedings: Playing An Audio Tape That Was Not Admitted

Defendant was prosecuted for distributing cocaine. After the evidence had been submitted at trial, during the closing argument the prosecutor played audio and video recordings from the case. He "inadvertently included an audio recording not entered into evidence." While the defendant did not object during the closing argument, he later moved for "a mistrial after all of the closing statements were completed." The trial court denied the motion. The defendant raised the issue on appeal following his conviction.

First Circuit Review: Assessing The Impact From The Unadmitted Evidence

The First Circuit affirmed the conviction after considering the impact of the inadvertent error. As the circuit noted:

Here, any incremental impact of the unadmitted tape beyond that of the admitted tapes was so minimal that no one appeared to notice as it was played that it had not been admitted. This was thus not a case in which disputed evidence kept out for its substantial prejudicial impact was played to the jury. To the contrary, even on appeal Rojas can point to nothing in the recording that was either unfairly prejudicial or uniquely inculpatory. Adding belt to suspenders, the judge also gave a curative instruction as soon as he was alerted to the issue. See United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993). Rojas provides no basis for doubting that the jury disregarded the evidence as instructed.

Rojas, _ F.3d at _.


While closing argument is limited to evidence that has been admitted at trial, inadvertence may occur. The Rojas case shows how a trial court may respond and the issue will be reviewed on appeal. In the end, the prejudicial impact of the evidence will be considered in determining whether reversible error resulted.


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