Professional Documents
Culture Documents
Military Judge:
T. E. Dixon
The first of
PFC
go with him.
Once in El
Paso, PFC Pearsall called Appellant, who gave him Bams pager
number.
contact, Bam met the two soldiers who followed him to a house
and waited outside.
During
military judge directed the trial counsel to stop the tape and
stated, The courts having difficulty understanding the tape.
When the military judge asked whether the members could
understand the tape, the president replied, Only partially.
The military judge then called a recess to allow the Government
to obtain a better sound system over which to play the tape.
During the recess, a member of the legal offices staff who was
attempting to help accidentally recorded over a portion of the
second telephone conversation.
Another Article 39(a) session followed the recess, during
which the military judge commented, The court cannot understand
the tape, its not audible, and although its been admitted at
this point in time Ive determined that it would lead to
confusion of the members and would otherwise be unhelpful . . .
.
So to the
The military
Over
that the tape has been recorded over in at least one place and
gave each member a copy of the transcript and then played the
entire tape.
She asked,
He replied,
But when
In response to a
Our
10
officers headquarters.5
We agree
Id.
Id.
United States v. Turner, 528 F.2d 143, 167 (9th Cir. 1975).
Accord United States v. Young, 105 F.3d 1, 10 (1st Cir. 1997)
(In this circuit we have long approved the use of properly
authenticated transcripts of tape recordings for the purpose of
helping the jury listen to and understand the recordings
themselves.).
8
We
We
The
We
generally agree with the Ohio Supreme Court that, once a proper
foundation is laid, recorded tapes of actual events, such as
street drug sales, should be admissible despite audibility
problems, background noises, or the lack of crystal clear
conversations, since they directly portray what happened.12
However, this rule is subject to the caveat that a recording is
not admissible if the unintelligible portions are so
substantial as to render the recording as a whole
10
Id.
11
Id.
12
12
untrustworthy.13
Another witness
13
14
See United States v. Brandon, 363 F.3d 341, 344 (4th Cir.
2004) (holding that a substantially accurate transcript of a
recording of a drug transaction was admissible); United States
v. Watson, 594 F.2d 1330, 1336 (10th Cir. 1979) (holding that a
substantially accurate transcript of tapes of intercepted
telephone calls was admissible); cf. United States v. Arruza, 26
M.J. 234, 236 (C.M.A. 1988) (holding that a substantially
verbatim transcript of Article 32 testimony was admissible
under Military Rule of Evidence 804(b)(1)).
13
(1) the
Nevertheless, we conclude
what portions of the tape were audible and described the results
of his comparison of those audible portions with the transcript.
In the future, military judges should explicitly announce this
determination for the record.
15
review of the tape and transcript reveals that when the military
judge compared the two, he would have found that while the
transcript is not perfectly verbatim, it is substantially
accurate.16
The
16
15
We join
17
deliberations.20
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