A technician replayed the tapes to the jury without anyone else present. The jury did not receive the related cross-examination. The judge instructed the technician on how to replay the tapes and directed him not to comment on the contents or answer any questions from the jurors. The judge also instructed the jurors not to discuss the tapes during the playback or give undue emphasis to the recording in deliberations. Afterward, the technician stated on the record that he and the jury had followed the court’s instructions. The jury then returned guilty verdicts for the defendants.
First Circuit Weighs in on Circuit Split
On appeal, the defendants argued the playback outside their presence violated their rights under the Due Process Clause of the Fifth Amendment, the Confrontation Clause of the Sixth Amendment, and Federal Rule of Civil Procedure 43. The U.S. Supreme Court has held that “[t]he constitutional right to presence is rooted to a large extent in the Confrontation Clause,” which states that a defendant has the right “to be confronted with the witnesses against him.” Additionally, the Due Process Clause may require a defendant’s presence “where the defendant is not actually confronting witnesses or evidence against him,” but his presence would have a “reasonably substantial” relation to his ability to defend against the charges. Rule 43(a)(2) provides that the defendant must be present at “every trial stage, including jury impanelment and the return of the verdict.”
The defendants urged the First Circuit to follow the Ninth Circuit, which held that “a defendant has a right to be present when tape-recorded conversations are replayed to a jury during its deliberations” in United States v. Felix-Rodriguez. The Fourth Circuit took a similar position, stating “[t]he risk attendant to the practice of sending a person into the jury room to cue up an audiotape on a tape recorder is sufficiently great that we do not condone it.” By contrast, the District of Columbia Circuit has ruled that tape replaying is “not a stage of trial implicating the confrontation clause or Rule 43(a).”
The Monserrate-Valentín court analogized the audio playbacks to documentary evidence routinely reviewed by jurors outside the courtroom and concluded that playbacks are not a stage of trial implicating the Confrontation Clause. The First Circuit also held there was no due process violation, finding the district court “took the proper precautionary measures” to prevent injection of extrinsic evidence into jury deliberations and overemphasis of the replayed recordings by the jury. Accordingly, the First Circuit declined defendants’ invitation to adopt a rule requiring all playbacks to be conducted in open court.
Balancing the Risks to Defendants’ Rights with the Jury’s Need for Information
“The Confrontation Clause does not apply because this was a review of testimony, and defendants already had a chance to cross-examine the witnesses. Jury deliberations aren’t a stage of trial where the defendant has a right to be present,” explains Richard D. Friedman, Ann Arbor, MI, cochair of the ABA Criminal Justice Section’s Criminal Procedure and Evidence Committee.
“As long as the recording was entered into evidence correctly and defendant was present when it was entered into evidence, that satisfies the Rule 43 and Confrontation Clause issues,” agrees D. Grayson Yeargin, Washington, D.C., cochair of the Section of Litigation’s Civil Rights Litigation Committee and past cochair of the Criminal Litigation Committee. “Once you make a decision to allow the jury to view the evidence in the jury room, they can emphasize whatever they want. There’s nothing inherent about recordings that puts them into a separate category from documentary evidence,” he adds.
Audio replays to the jury by technicians outside the courtroom present risks to a defendant’s due process rights, however. “First, if the jurors make comments during the playback, there is the problem of the technician being present during the deliberations. Second, there is a chance that the technician will say something, smirk, nod, or maybe even unintentionally give the jurors some kind of cue. Third, extraneous stuff on the tape that wasn’t admitted could be played,” observes Friedman. In short, he says, although the court does seem to have taken adequate precautions to limit the risks, it would have been better if the technician had not been in the room with the jurors when the testimony was replayed.
Conducting audio playbacks on the record in open court may not be the ideal solution though. “You’re impairing jury deliberations if you prevent the jury from listening to the tape in the jury room. The jury is not getting the opportunity they ought to have to review the evidence on their own and discuss it as the tape is playing,” Friedman notes.
Advice for Practitioners
The court, with assistance by counsel, should “put the jury in a position where they can listen to the tapes without anyone else coming into the jury room,” advises Friedman. He recommends providing the tapes and equipment to the jury, with instructions on how to use them, and clearing out inadmissible parts of the recordings beforehand.
Defense counsel should also consider arguing that evidence related to the recordings be reviewed in conjunction with the playback, says Yeargin. “It’s important to understand what the jury is asking, why they want to hear the recording, and make sure they get the information they need,” he explains.
Renee Choy Ohlendorf is an associate editor for Litigation News.