Reviewing Claim Of "Doing Theater" At Trial

After a transcript of some instant messaging exchanges had been admitted in an access device fraud conspiracy trial, did the prosecution go too far by then reading selective portions of "the transcripts aloud" to the jury in presenting the case? While cautioning about the dangers of "performing" transcript evidence for the jury, the Sixth Circuit ultimately affirmed "the mere reading aloud of previously admitted documentary evidence" in United States v. Tragas, __ F.3d __ (6th Cir. Aug. 23, 2013) (No. 11–1637)

In the Tragas case, the defendant appealed her conviction for access device fraud. She contended that the prosecution had made a "remarkable departure from traditional American trial practice" by "doing theater" at trial -- by reading sections from a properly admitted transcript "aloud the the jury." Absent some showing of prejudice, the Sixth Circuit noted that the evidence which is appropriately before the jury in a written form, is not necessarily excludable if offered in an oral presentation.

Instant Messaging Transcript

Defendant Tragas was charged with conspiracy to commit access device fraud, and related bank and wire fraud offenses. In the scheme, she acted as "a middleman between overseas suppliers of stolen credit and debit card information and street-level users of that information." These users converted the credit card information "into cash or easily transferable property." At her trial, the prosecution introducted some of the extensive "online chats" between her and co-consprators. The trial court admitted a transcript of these communications into evidence. Tragas, __ F.3d at __.

Supplementing The Written Transcript

There was no dispute that the statements were admissible against the defendant as a party admissions under FRE 801(d)(2). However, in addition to the transcript, "prosecutor, together with [case] Secret Service Agent [who] ... read many of the conversations aloud to the jury." "Although Defendant's counsel initially had no objection to the testimony" provided by the prosecutor and agent reading the selections of the transcript of the on-line chats of the defendants, "he subsequently objected on the ground that reading the documents was cumulative because the transcripts had already been admitted into evidence." After her conviction, the defendant challenged the reading on appeal.

A Matter Of The Evidence's Form, Not Content

The Sixth Circuit confessed that the "exact basis for Defendant's objection to this evidence [wa]s difficult to pin down." Nonetheless, it could "find nothing improper in the reading aloud of a properly admitted transcript under these circumstances." Tragas, __ F.3d at __. The clear basis for presenting the transcript was as a FRE 801(d)(2) as a party admission. The defendant appeared upset with the form and not particularly with the evidence's content. The defendant argued "that the prosecutor and Agent ... essentially play-acted the chat conversations, with the prosecutor 'performing' the role of Defendant, and [Agent] playing various co-conspirators. In so doing, Defendant argue[d], the prosecutor interpreted and characterized the otherwise properly admitted documentary evidence and portrayed Defendant's written communications in a way that telegraphed to the jury that she was guilty." Tragas, __ F.3d at __.

The Sixth Circuit seemed to reject that the prosecutors had been such fine character actors and that their performance had the capacity to move or impress the audience by its theatrics. Had they been so, there might be a problem as:

A staged performance or re-enactment of an event by a prosecutor would undoubtedly be problematic insofar as it strayed from the direct evidence introduced at trial or reflected the prosecutor's opinions, although we have approved video reenactments in certain circumstances. However, the prosecutor's conduct in this case cannot possibly be described as a re-enactment. Although Defendant points to some minor discrepancies between the reading and the written text, none of these discrepancies are material, and the jury had copies of the written transcripts with which to follow along. Nothing in the record indicates that the prosecutor or Agent ... “performed” a scene in any meaningful sense. Rather, they merely read aloud from documents that Defendant concedes were properly admitted into evidence.
Tragas, __ F.3d at __ (citing Persian Galleries, Inc. v. Transcontinental Ins. Co., 38 F.3d 253, 257–58 (6th Cir. 1994) ("admitting the videotaped reenactment of the [charged] theft because the reconstructed scene of the burglary and the reenactment" since any "alleged discrepancies between the reconstructed crime site and the conditions as they may have existed on the night of the theft reflect, not upon the admissibility of the evidence, but rather upon its credibility, an assessment assigned exclusively to the discretion of the jury")).

Merely reading admissible evidence aloud in court was not necessarily problematic. If there was a problem, it was the defendant's burden to show it. The defendant failed to do so as she:

offers no support for her proposition that the mere reading aloud of previously admitted documentary evidence is improper or prejudicial. On the contrary, there is nothing inherently problematic about reading such evidence to the jury. As long as the evidence itself is properly admitted pursuant to the Rules of Evidence and does not run afoul of other safeguards like the Confrontation Clause, we do not see how a defendant could be prejudiced if the evidence is read aloud to the jury.
Tragas, __ F.3d at __ (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 262–63 (1988) (finding no prejudice to when two IRS agents read together from a transcript before a grand jury); United States v. Chambers, 441 F.3d 438, 456–57 (6th Cir. 2006) (concluding there was no unfair prejudice from a police officer reading parts of the defendant's previously admitted diary to the jury)).

The circuit did not buy the defendant's contention "that the oral reading of the text of some of the transcript constituted a 'remarkable departure from traditional American trial practice.'” Here the defendant advanced "nothing in the record that would suggest that the prosecutor and case agent did anything other than read the transcripts aloud." That, in and of itself, was not a problem.

The defendant advanced several other theories to challenge the oral rendition of the transcript but none were persuasive. For example, the defendant was also unsuccessful arguing that "the testimony presented an improper overview or summary." Nor was the contention that the prosecutor had presented summary evidence at trial any more successful. The prosecutor "cannot be said to have summarized anything," concluded the circuit. He was merely reading directly from a transcript that had already been provided to the jury in written form" and the jury had been properly instructed regarding use of the evidence. See United States v. Vasilakos, 508 F.3d 401, 412 (6th Cir. 2007); United States v. Weinstock, 153 F.3d 272, 278 (6th Cir. 1998) (finding no error in admitting a summary to facilitate the jury's consideration of previously admitted evidence).

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Photo Description: Sixth Circuit Court of Appeals, Potter Stewart U.S. Courthouse, Cincinnati, OH. Learn more about the courthouse which was named after U.S. Supreme Court Justice Potter Stewart who served for twenty-three years on the Court.

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