May 17

Questionable Recording Admitted In Evidence

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Nantambu was arrested on domestic violence charges after his girlfriend said she was threatened with a gun. A later search of his apartment yeilded a handgun and he was charged with weapons offenses. The girlfriend later advised police that Nantambu offered her money for favorable testimony. Police had her call him and record the conversation. During the recording, the device fell to the ground and caused a gap in the recording. Based on the recording, police also charged Nantambu with witness tampering. Nantambu moved to suppress the recording on the theory that a two minute gap in the conversation made the recording unreliable and inadmissible. The lower court granted the motion, relying on State v. Driver, and the Apellate Division reveresed the suppression.

The State Supreme Court held that Driver establihed the standard for admissibility of a recording in a criminal trial but clarified the case. The Court held that reliability was the key factor and a highly fact-sensitive issue, requiring consideration of any gaps or defects and the purpose for which the recording was being offered. The Court found no bright line rule to exclude but rather said a Rule 104 hearing shoud be held to determine if the gaps rendered the recording fatally flawed or unduly prejudicial. The recording should be admitted to the extent it contains competent and reliable evidence. Portions deemed unreliable due to gaps shoud be redacted.

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