United States District Court, D. Connecticut
MEMORANDUM OF DECISION DENYING DEFENDANT BELAIR'S
MOTION IN LIMINIE RE: AUDIO TRANSCRIPTION [DKT. 155]
HON.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
Defendant
Belair moves in liminie to exclude a transcription
of his conversation with Plaintiff on March 8, 2013.
Defendant argues that the transcription should be excluded
for the following reasons: (1) the parties will introduce the
audio which is the best evidence of the conversation under
Federal Rule of Evidence 1002, (2) the accuracy of the
transcription has not been verified or authenticated, and (3)
admission of the transcription would be unduly prejudicial to
the Defendant because he would have to take the time to
compare the audio to the transcription for the jury.
As a
starting point, relevant evidence is admissible unless
specifically precluded. Fed.R.Evid. 402. Defendant has not
cited and the Court cannot conceive of how the transcription
falls into any of the excluded categories of material listed
in Federal Rule of Evidence 402. The transcription is
relevant because it purports to depict what was uttered at
the time and place of the acts complained of. Thus, it is
highly probative and relevant.
As an
initial matter, transcriptions of recorded conversations are
routinely admitted in evidence. See United States v.
Ben-Shimon, 249 F.3d 98, 101 (2d Cir. 2001)
(“Where the recorded conversation is conducted in a
foreign language, an English language transcript may be
submitted to permit the jury to understand and evaluate the
evidence.”); see also United States v. Koska,
443 F.2d 1167, 1169 (2d Cir. 1971) (“Admission of
accurate transcripts as an aid in listening to tape
recordings has been held to be a matter within the discretion
of the trial judge.”); United States v.
Carson, 464 F.2d 424, 437 (2d Cir. 1972) (holding that
it was “not an abuse of discretion to admit the tapes
and transcripts into evidence nor error to allow the jury to
retain the transcripts during the trial and their
deliberations”); United States v. Buck, No. 84
CR. 220-CSH, 1987 WL 17646, at *2 (S.D.N.Y. Sept. 18, 1987)
(“Where the defendant does not challenge the accuracy
of the transcript . . . no problem arises in respect of the
submission of the transcript to the jury, although . . . the
trial judge should take the precaution of instructing the
jurors that what they hear on the tape constitutes the
evidence in the case and not what the lawyers have agreed is
an accurate transcript.”). Here, the audio is difficult
to hear and therefore admitting the transcription aids the
jury in the same manner as when an audio recording is in
another language.
The
Court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Fed.R.Evid. 403. Defendant does not
challenge the accuracy of the transcription. Absent such a
challenge, Defendant has failed to show that the
transcription's probative value is substantially
outweighed by a danger of unfairly prejudicing, confusing, or
misleading the jury. The audio recording is short and the
sound quality is not good, therefore admitting the
transcription would not unduly delay the proceeding or waste
time by admitting needlessly cumulative evidence.
Furthermore, the fact that the parties complied with Federal
Rule of Evidence 1002 by identifying the original recording
does not preclude Plaintiff from offering additional
probative evidence on the same subject which tends to aid the
jury and is not misleading or unduly repetitive.
Second,
“[p]rejudice alone is not sufficient to warrant
exclusion under Rule 403. Virtually all evidence is
prejudicial to one party or another. When a defendant is
being prosecuted for exactly what [the evidence] depicts,
courts consistently have rejected Rule 403 challenges. To
justify exclusion under Rule 403, the prejudice must be
unfair, although evidence may be ‘unfairly
prejudicial' when it alludes to the very fact to be
decided.” 2 Weinstein's Federal Evidence §
403.04 (2018) (internal citations and quotations omitted).
The Advisory Committee Note to Rule 403 “explains that
‘unfair prejudice' means an undue tendency to
suggest decision on an improper basis, commonly, though not
necessarily, an emotional one. Unfairness may be found in any
form of evidence that may cause a jury to base its decision
on something other than the established propositions in the
case. Prejudice is also unfair if the evidence was designed
to elicit a response from the jurors that is not justified by
the evidence.” Id. (internal citations and
quotations omitted).
Here,
the need to authenticate the transcription and verify its
accuracy does not pose an unfair burden on the Defendant. To
the extent Defendant challenges its authenticity, Plaintiff
can call a witness to authenticate it. In so far as its
accuracy is concerned, Defendant does not allege that it is
not accurate nor does he allege that it is technologically
impossible or cost prohibitive to determine its accuracy.
Even if it were, Defendant was present and, having personal
knowledge of what transpired, he can impeach the
transcription with his testimony or submit his own version of
the transcription. See United States v. Chiarizio,
525 F.2d 289, 293 (2d Cir. 1975). Given its highly probative
value, mere inconvenience or frugality is insufficient to
make its prejudicial value substantially outweigh its
probative effect. Absent any other argument, Defendant fails
to carry his burden of showing that admission of the
transcription is unduly prejudicial.
Finally,
as described above, courts routinely give and this Court
proposes to give, a curative instruction to avoid undue
reliance on the transcription. Any such concern can be
addressed in an instruction to the jury. For example, Modern
Federal Jury Instructions provides several examples of
instructions for the use of transcriptions, including the
following pattern jury instruction from the Fifth Circuit:
A typewritten transcription of an oral conversation, which
can be heard on a recording received in evidence [as Exhibit
___] was shown to you. The transcription also purports to
identify the speakers engaged in such conversation.
I have admitted the transcription [as Exhibit ___] for the
limited and secondary purpose of aiding you in following the
content of the conversation as you listen to the recording,
and also to aid you in identifying the speakers.
You are specifically instructed that whether the
transcription correctly or incorrectly reflects the content
of the conversation or the identity of the speakers is
entirely for you to determine, based on your evaluation of
the testimony you have heard about the preparation of the
transcription and on your own examination of the
transcription in relation to your hearing of the recording
itself as the primary evidence of its own contents. If you
should determine that the transcription is in any respect
incorrect or unreliable, you should disregard it to that
extent.
Fifth
Circuit Pattern Jury Instructions: Civil Cases § 2.14
(2016). The instruction specifically requires the jury to
disregard the transcription to the extent that it conflicts
with their own understanding of the recording. See
Koska, 443 F.2d 1167, 1169 n.1 (citing with approval the
district court's instruction to the jury that what they
hear on the recording controls over the typed transcription).
Ultimately, the jury will be charged with deciding what
happened for itself. ...