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We have a few seconds of audio redacted before Miranda. The jury will hear that the video goes silent. Then they hear Miranda and more questions. Voir dire suggestions addressing redacted evidence? How much can you question the officer about the silence? Obviously not the substance, but can the officer explain that he didn't turn his mic off? I've had juries before frustrated by redacted papers, so I'm trying to figure out how much I can educate them on the process so that they don't hold the redactions against us. | ||
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I don't think you can comment specifically on the fact that the tape is redacted; the redacted portion is "not in evidence" and the jury should be instructed not to consider evidence that is not before them, or the reasons why certain evidence might or might not be admissible. I think what you can do is address those legal issues broadly in voir dire. Can jurors accept that what they hear in court is the only evidence they can consider (and cannot speculate on the reasons for the absence of evidence, unless there is evidence in the record that explains/attacks the missing pieces), or are they going to make assumptions that the State is hiding things if they may or may not get to hear everything they want to hear? | |||
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My judges routinely advise the jury that portions may appear to be missing and that they have been removed by order of the court. They explain that it was a legal issue and that the jury shouldn't worry about it. I always want the instruction so that the jury doesn't think I'm playing hide the ball. | |||
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We have the sponsoring witness testify that certain portions have been deleted "by agreement of the parties" or "by order of the court" because those parts of the interview were not relevant to the trial. In the transcripts, we note where the deletions occurred. | |||
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