Tape Recordings, Charts
Category > Tape Recordings, Charts
The “timeline” with written comments was not proper demonstrative evidence, but rather, included inadmissible hearsay used to bolster the alleged victim’s credibility.During the prosecutor’s redirect exam of the alleged child molest victim, the trial court allowed the prosecution to display a 20-foot “timeline” of the alleged molestations that had been created by a therapist for a prior proceeding. It contained detailed statements describing the alleged abuse written by the therapist at the child’s direction together with dates and photos. The court also allowed the prosecutor to question the child about the statements on the timeline. However, it was error to allow the jury to view the timeline and allow the child to read from it. It was not proper demonstrative evidence, but rather contained inadmissible hearsay that was used to bolster the child’s credibility. The error required full reversal because much of the state’s case relied on the credibility of the alleged victim.id: 25340
The trial court prejudicially erred by allowing jurors to translate for themselves and other jurors the contents of the recordings. Allowing the jurors to translate for themselves the Spanish-language audio recordings of defendant’s interrogations constituted structural error requiring reversal of defendant’s child molest conviction. id: 23089
Tape recorded conversations between victim's wife and her paramour were inadmissible at the murder trial and the convictions were reversed.Victim tape recorded a telephone conversation between his wife and her suspected paramour which revealed their intention of killing him. 48 hours later he was bludgeoned to death in his own home. At the murder trial of the wife and paramours the prosecutor relied heavily on the tape recordings. Secretly recorded telephone conversations by the victim are inadmissible at trial pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. (18 U.S.C. 2515). The Supreme Court refused to create a new enumerated exception to the Act for interspousal wiretapping. The Court also refused to read into the Act an exception permitting the use of evidence illegally intercepted by a private party. The murder convictions were reversed where the tape recordings were the linchpin of the state's case against the defendants.id: 12991
Trial court erred in admitting a videotape of the conditional examination of the witness.A prosecution witness was unavailable to testify at trial and the court ordered a conditional examination of the witness on videotape pursuant to Penal Code section 1335, et seq. However, the statutory scheme governing conditional examinations does not authorize the admission into evidence of a videotaped deposition. The error was harmless where there was no reasonable probability the defendant would have achieved a better result if the court had admitted a written transcript of the testimony instead of a videotape.id: 12995
Telephone conversation illegally tape recorded by a private party could not be used in support of the search warrant.A third party who was not involved in appellant's criminal venture surreptitiously tape recorded telephone conversations with appellant and gave the tapes to the police. Appellant argued Title III of the Omnibus Crime Control and Safe Streets Act precluded the use of the tapes to support the search warrant. The People argued The Act did not apply because the tapes were made by a private party and the police were involved in no wrong doing. However, the Act (18 U.S.C. 2510, et seq.) bars the use of <i>any</i> illegally intercepted wire communication, or <i>any</i> evidence derived therefrom. Therefore the recorded conversations could not be used to support the instant warrant. The Court of Appeal did not determine whether the good faith exception applied to the instant facts since the search warrant still provided probable cause to conduct the search, after redacting the tainted references to the taped confessions.id: 11060
Updated 3/4/2024The new rap video law, Evidence Code section 352.2 does not apply retroactively to cases that have already been tried.Defendant argued that the admission of the rap video played at his trial violated the newly enacted Evidence Code section 352.2. However, the new law does not apply retroactively to cases not yet final when the law became effective.id: 27851
Updated 2/26/2024Officer’s testimony regarding the surveillance videos was not hearsay, did not rely on authenticated writings and helped establish probable cause for the warrentless arrest.Defendant argued the arresting officer’s testimony regarding the robbery surveillance videos was inadmissible and insufficient to establish probable cause for the warrantless arrest of the defendants. First, the officer’s testimony was not hearsay because it was offered only to show the information he relied on when arresting defendants. Moreover, the videos were properly authenticated as they came from robbery case files or were obtained from the location of the robberies, which is circumstantial evidence that the videos depict the robberies under investigation. Finally, the videos helped the officer identify the defendants and helped establish probable cause for the warrantless arrest.id: 26246
Updated 2/23/2024The trial court did not err by admitting videos used by the state’s expert that enhanced the quality but did not alter the content.Defendant was convicted of aggravated assault following a street fight late at night in a bar/restaurant district in San Diego. The prosecution presented a video expert to help analyze and sequence the available videos of the incident. Defendant argued the witness became a factfinder in the way he shaped the videos, thus usurping the function of the jurors. However, the record shows the witness did not alter the videos except to enhance their quality. The trial court did not err by admitting the videos. id: 26872
Updated 2/22/2024The trial court did not err by permitting a detective to describe the events of a surveillance video that was later watched by the jury.Defendant argued the trial court erred by permitting a detective to describe the events of a surveillance video that was subsequently watched by the jury. However, the narration was not secondary evidence admitted to prove the content of the video, and was not inadmissible lay opinion testimony. The detective simply testified as to what she saw and did not provide an opinion.id: 27055
Under the rule of completeness, the trial court properly refused to redact the letter detailing the witness’s cooperation.The trial court granted the defense request to admit a letter written by a prosecutor implying the state’s witness may have received consideration for his testimony. The court did not thereafter err by refusing to redact the letter to omit details of the defendant’s involvement in the charged offenses. the court properly found the entire letter was admissible under the rule of completeness.id: 24726
The rule of completeness did not require the prosecution to play defendant’s entire statement to the police where the portion played was not misleading and the prosecutor never argued defendant fired the fatal shot.Defendant argued the trial court prejudicially erred by allowing one of the detectives to convey a misleading portion of his police statement rather than require the prosecution to play the entire statement for the jury. However, the testimony did not suggest who threw the gun and the prosecutor never argued that defendant fired the fatal shot. Neither did not prosecutor argue (as defendant claimed) that his throwing of the gun showed a consciousness of guilt. The trial court did not err by ruling that Evidence Code section 356 did not require admission of defendant’s entire statement to the officer. id: 24725
The trial court did not err in excluding videotapes of the crime scene where witnesses testified there was artificial light in addition to the natural light at the time. Defendant argued the trial court erred by excluding two videotapes of the crime scene to impeach an eyewitness’s testimony. However, even if the videotapes reflected what the eye could see with natural lighting, the court properly excluded them because witnesses testified that there was artificial light as well as natural light at the scene.id: 22057
The trial court did not err by admitting a video tape of defendant examining his genitals for evidence while alone in the interrogation room.The trial court did not err by admitting into evidence a videotape of defendant unzipping his pants and examining his genitals while being held at the interrogation room at the jail. While defense counsel conceded during his opening statement that defendant had intercourse with the victim, the prosecution still had to prove its case, and the videotape was relevant to show consciousness of guilt.id: 22047
The trial court did not err by admitting a videotape from the first trial where the judge was active in clarifying the ambiguous testimony of a prosecution witness.Defendant was convicted, at a retrial, of second degree murder. He argued the trial court erred by admitting into evidence the videotape of a witness’s testimony from the first trial where the judge acted like a witness for the prosecution. However, the videotape merely shows the trial judge seeking to clarify a prosecution criminalist’s ambiguous testimony. The trial court has the power to clarify testimony and there was no confrontation clause or due process error.id: 22168
The trial court properly excluded as unreliable the videotape of the victim's wife in which she admitted killing the victim. Defendant argued the trial court erred in excluding as hearsay a videotaped statement by the victim's wife in which she claimed to have killed her husband. However, the statement was properly excluded as unreliable. She gave two other statements denying any knowledge of her husband's death showing she was untruthful at some point. This reduced the reliability of all of her statements.id: 19729
The trial court did not abuse its discretion by permitting the prosecutor to play a COPS TV reality show video where it contradicted the defendant's claim that he acted out of heat of passion.The trial court did not abuse its discretion by permitting the prosecutor to play the three minute video recording of the police rescuing the victim from a strangling attack by defendant. The force depicted in the video, the victim's lack of consciousness and the blood on her face were entirely inconsistent with defendant's claim that he acted out of a sudden heat of passion.id: 19654
The confrontation clause does not preclude the admission of the portion of the videotape depicting the condition of the victim's residence. The trial court erred in excluding a portion of the videotape depicting the condition of the victim's residence. Videotapes are demonstrative evidence depicting what the camera sees and are not testimonial and not hearsay.id: 19500
The trial court did not err in admitting a videotape of a simple demonstration performed by a prosecution expert.The trial court did not abuse its discretion in admitting a videotaped demonstration of a fire investigator lighting a paper towel and throwing it to the ground. It was presented to rebut the defense claim that the fire could extinguish in midair
when the paper towel was thrown. Given the simplicity of the demonstration and the point it was trying to make, the court properly rejected the claim that the experiment was not made under sufficiently similar circumstances.id: 19448
The court did not err in excluding the videotape of the crime scene due to the difference in lighting conditions.The trial court did not err in excluding evidence of the
videotape of the crime scene after finding the lighting conditions portrayed on the film were not sufficiently similar to the lighting conditions on the night of the crime.id: 19109
Exclusion of entire taped conversation after the detective's testimony did not violate the best evidence rule or the rule of completeness.A detective testified about a recorded prearrest conversation between defendant and Bernstein. Defendant argued the failure to play the entire taped conversation to the jury violated the best evidence rule. However, since the detective was just testifying to what he saw and heard, his testimony was primary evidence even though the same matter may have been available in the tape recording. Moreover, the court's ruling did not violate the "rule of completeness" under Evidence Code section 356 which applies only to the portion of the statement originally introduced.id: 18626
Admission of the audiotape was not an abuse of discretion under section 352 and other asserted errors were waived for lack of a specific objection.Defendant challenged the admission of the audiotape of a post-arrest, wiretapped telephone call with "Sell Dog" in which defendant originally admitted killing one victim and discussed whether another victim would testify against him. Because defendant only objected that admission of the evidence was improper under Evidence Code section 352, he waived his claims of lack of authentication and federal constitutional error. Moreover, the admission of the tape over defendant's section 352 objection was within the court's discretion. Despite the trial court's misstatement, the jury would have understood that the tape - not the transcript - was in evidence. Any error was harmless since there was no reasonable likelihood the tape, or the court's misstatement affected the verdict.id: 18607
A sealing order may be oral and tape recordings need not be presented to the judge for sealing in his or her presence.The trial court granted defendant's motion to suppress tape recordings of certain telephone conversations. Defendant had argued there was no timely order regarding sealing and the tapes had never been delivered to the judge as purportedly required by Penal Code section 629.14. The trial court granted the motion based on the government's failure to comply with the purported requirement that the sealing be conducted under the supervision of the judge. However, the Court of Appeal found that a timely <i>oral</i> sealing order was in effect and that the court's participation in the physical sealing of the tapes was not required by the statute.id: 12988
Jailhouse tapes were properly admitted to prove consciousness of guilt notwithstanding the prosecutor's repeated misuse of the evidence.Several jailhouse tape recordings discussing defendant's need to kill a prosecution witness, the prosecutor, and a lead investigator were admitted into evidence. The tapes were highly probative to prove consciousness of guilt and were properly admitted. The prosecutor did proceed to use the evidence improperly, however, as he repeatedly stated the evidence suggested that plotting to kill defendant's sixth wife demonstrated that he had killed his fifth wife. However,the jury was repeatedly told the evidence could only be considered for consciousness of guilt and there was nothing to indicate the jury misapplied the instructions.id: 12989
No abuse of discretion in allowing the jurors to use the transcript as a guide while listening to the tape recording where there was no showing as to the transcript's inaccuracy.Appellant argued the court erred in denying his objection to allowing a transcript of the tape recording of his conversation with a confederate be read by the jurors as a guide while the tape was being played. However, in light of the cautionary instructions read the jury and the confederate's testimony regarding the statements actually made, defendant did not show the transcript was so inaccurate as to mislead the jury.id: 12990
Tape recording that was not completely intelligible was properly admitted where one of the parties to the conversation testified as to the gaps.Defendant argued the tape recorded conversation between he and his wife at the jail should have been excluded because it was, in substantial part, unintelligible. To be admissible, tape recordings need not be completely intelligible. Defendant's wife testified at trial as to many portions of the tapes that contained gaps or unintelligible comments and her efforts were focused on interpretations that would prove exculpatory. The court's conclusion that the comments on the tape would not lead to improper speculation by the jury was reasonable.id: 12992
Trial court did not err in permitting the videotaping of a penalty phase witness for purposes of preserving evidence in the event of a retrial.A rape victim was called to testify during the penalty phase of a defendant's capital trial. Contrary to defendant's argument the trial court did not err in permitting the videotaping of her testimony. The videotaping was not done for the purpose of media broadcasting, but rather for preserving evidence and therefore fell under the provisions of section 980 of the California Rules of Court.id: 12993
Trial court did not abuse its discretion in admitting tape recording and transcripts despite inaudible portions where audible portions were clearly material.Defendants argued the trial court erred in admitting into evidence unintelligible portions of a tape recording of their conversation in the back of a police car. However, despite certain inaudible portions, the trial court, after listening to the tape found it contained sufficient audible portions of matters having a material and important bearing on the case. There was no abuse of discretion in admitting the partially audible tape. Likewise, there was no error in admitting the transcript of the recordings despite established inaccuracies, where the court ordered certain portions deleted and allowed the defense to prepare its own version of the tape recording.id: 12994
Use of tape recorder to make sound recordings as personal notes is not improper.Trial court erred in refusing to allow defense counsel to use a small tape recorder during trial. The machine which would have been placed among the books on counsel's table, operated silently and was five inches by four inches by one inch in size. In denying permission to use the tape recorder, the court was taking issue with California Rules of Court, rule 980(c), which allows the use of such devises, rather than with the manner in which defense counsel intended to use it.id: 12996
Court did not err in admitting videotape reenacting the crime scene despite the claimed inaccuracies where the witness confirmed the video accurately showed the scene.The day after the murder police, with the help of a witness, made a videotape reenacting the scene. Defendant argued the tape should have been excluded because the prosecution failed to lay a foundation showing the accuracy of certain scenes as reenactments of what the witness viewed. However, once the witness confirmed her testimony that the video accurately showed the scene the court could correctly conclude the videotape was a reasonable representation of the physical layout of the building and the witness' vantage point. Moreover, the court could properly find that viewing the videotape would aid the jurors in determining the facts notwithstanding the claimed inaccuracies.id: 12900
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245