Have any of you dealt with the rationale in Fischer v. State (2006 WL 3072047) where the 14th COA excluded officer statements made on a DWI video regarding defendant's activities and performance on FST's? The reasoning is that such statements are hearsay, and not admissible under present sense impression, and in light of Rule 803(8)(B). I'm beginning to see a worrying trend of defense using this opinion to redact any audio of the officer narrating to his video any FST clues or any of his impressions he later puts in his report.

What difference does it make, assuming you are having the officer appear and testify, as he could certainly refresh his memory from the video and repeat it through live testimony. Once he is cross-examined and impeached for problems with his memory, etc., you likely have a new reason to play the videotape to rebut the impeachment.

Certainly no Crawford objection because the officer testifies.

For one thing, I don't like the audio on my DWI recordings to be swiss-cheesed. At best, juries think we have crappy equipment, at worst, they're wondering why they were not allowed to hear whatever was being said throughout the stop. Also, when redacting audio, especially during FST's, I don't like to also mute important things like the defendant counting, etc.

You hint at one of my concerns: officer impeachment.
"Officer - how do you know the citizen accused stepped off the line on step #3 & #6 - this was a year and a half ago."
"Because I mentioned it on the video."
"Well, we certainly don't hear it - anything else you're mistaken about."

If I'm reading you right, you're saying a judge should allow us to rebut an implication made regarding evidence the defense themselves objected to the admission of. I wish I shared your optimism. I'm trying to plan for every outcome, not the likely or legally correct ones.

On a perhaps illogical basis, this opinion just irks the hell out of me, and I wondered if anyone else out there got traction with their
respective judges on disregarding or minimizing it.
-T

Look at Rule 801(e)(1)(B) -- Prior consistent statement offered to rebut an implied or express claim of recent fabrication.
Your hypothetical cross, or one far less obvious, would clearly fall under that rule and allow you to play the muted portion. Also, Rule 107, Rule of Optional Completeness, may apply under certain circumstances.

A smart defense attorney would never cross as you've suggested, for fear of letting in the audio. Rather, he'd probably sit quiet and then later just argue it.

The Court of Criminal Appeals affirmed the 14th Court's opinion in Fischer v. Statelast January. How are you handling the issue of officers narrating their observations during investigations--especially DWI invesstigations? I had a call from a Trooper about this. I told him to talk to his DA, but I thought it would ba a good idea to find out how prosectutors are handling this at trial.

Janette A