United States v. Bryant

480 F.2d 785 (2d Cir. 1973)



Unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy the recording is admissible, and the decision should be left to the sound discretion of the judge.


The appellant, Elaine Bryant, was arrested after she accepted and paid for three bags of cocaine from Alberto McKenzie, a man who had been intercepted by the government agents at the airport. At trial, appellant sought to defend herself by testifying in substance that she was not aware that she was participating in an unlawful conspiracy. The trial court found her guilty of the crime charged. On appeal of her conviction, the appellant argued that the trial court committed reversible error by allowing into evidence the tape recording and transcript of a conversation between her McKenzie. In support of her contention, appellant makes three interrelated arguments: (1) that the judge failed to examine the tape and transcript and failed to rule on their admissibility out of the presence of the jury; (2) that the tape should have been excluded because it was substantially inaudible; and (3) that the transcript should have been excluded because it did not accurately reflect what was recorded on the tape.


Did the trial court commit a reversible error in its decision to allow the recording and transcript of conversation as evidence at the appellant’s trial?




The Court held that even though the trial court erred by allowing the tape to be played for the jury without first listening to it to determine its audibility and by admitting the transcript without a stipulation that it was accurate, the trial court did not commit reversible error. The Court posited that the appellant was not prejudiced because the inaudible parts of the tape were not so substantial as to render it more misleading than probative, and the trial court apprised the jury on numerous occasions of the possible inaccuracy and unreliability of both the tape and the transcript.

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