In an upcoming trial, we have about an hour long recorded non-custodial interview of the defendant.

The vast majority of the interview is self-serving bull spit. However, the defendant makes several statements that are very revealing and helpful for the prosecution.

Do I have to put in the recording itself? Or, since it is non-custodial, can the officer testify to the statements made by the defendant? I'm anticipating a "best evidence" objection on the part of the defense attorney.

In the interview the defendant talks about a number of prior bad acts and convictions that will have to be redacted if the entire interview is admitted.

[This message was edited by JSH on 04-17-11 at .]

There is no requirement that the noncustodial interview be recorded, so the interview is admissible in either or both forms (by recording and/or through witness testimony).

The real question is how much of the interview is admissible.

The statements are admissible because they include admissions of a party-opponent. Those statements that admit nothing relevant to the charges pending against him are not admissible under that rule of evidence.

However, the defendant may use another rule to gain admission of other parts of the statement: rule of optional completeness.

That rule won't get everything in, only those parts that better place the admissions in context.

And, of course, for the State and the defendant, there is the always-present rule 403 to keep out those matters that are confusing or misleading.

It is not always easy to slice and dice such interviews.

You should request a pretrial hearing in which you make it clear that you are only going to offer the admissions against a party opponent, and ask the judge to require the defense to identify what other statements are allegedly admissible.

You should favor offering the recording. It is more reliable and likely more convincing, assuming you only offer the parts that are relevant. Have a transcript done as well, so the jury can read along. If the jury hears the statements from a witness, a recording and reads from a transcript, then you have placed it before them three times in three different forms. Much more likely to stick.

Thanks JB. That's very helpful. I already have a transcript of the interview so I think I'll just play the parts that I need.

I was thinking about trying to do something like this in an upcoming DWI trial. The defendant makes some self serving statements (BS story) in the video that I would like to keep out under the party opponent exemption as being used "for" not "against" the defendant. I want him to take the stand to give this info if he wants it in. Can I redact this for these reasons and play the rest? Will he be able to make me play his BS story as part of optional completeness?

Ryan Hill

I can give you a definite maybe.

I just briefed a issue similar. Custodial statement, State did not offer, defendant gave a BS explanation. Trial counsel argued admissible as res gestae, present sense impression, excited utterance, and business records. We will see what the 11th CoA decides -- Walker v. State, No. 11-10-00342-CR.

Maybe is all we have sometimes. thanks. Good luck on your issues.

Ryan Hill

Yes, What JB said is completely correct.. It would be helpful for your interview...

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