When government agents secretly record a criminal suspect, the audio is not always as crisp as prosecutors would like. There's background noise in some instances. Different voices talking at once. Low volume.
In a foreign bribery case in Washington, the criminal defense lawyers for a man charged in an undercover sting don't think federal prosecutors should get any benefit at trial in enhancing the audio or using subtitles to help jurors understand what people are saying on the tapes.
Enhancing the government’s tapes, Kobre & Kim partner Eric Bruce said in court papers (PDF) filed this week, would give jurors the perception that conversations between the undercover agents and the target, a man named Pankesh Patel, were clear. The tapes are central to the government’s prosecution of a group of weapons and law enforcement equipment dealers accused of conspiring in a bribery scheme.
Patel’s lawyers want Judge Richard Leon of U.S. District Court for the District of Columbia to prohibit Justice Department prosecutors from enhancing the ability the hear the audio. Bruce compared enhanced tapes to “manipulating percentages in a lab report or wiping away fingerprints.”
“[I]f the original recordings reflect that certain words were difficult to discern, then the jury should appreciate that fact,” Bruce said in court papers. “The only way to ensure that Mr. Patel and other defendants are not unfairly deprived of the evidence of that ambiguity is to require the government to rely on unaltered versions of its recording evidence.”
Untouched versions of the audio, used without subtitles, “will allow the jury to fairly and accurately judge which words were conveyed clearly in settings conducive to audibility, and which words were garbled amid considerable background noise and buried under a heap of platitudes,” he added.
Bruce said some conversations the government recorded in the undercover sting occurred on streets and in restaurants, where background noise and other distractions made it difficult for his client to hear.
If prosecutors are allowed to present enhanced audio, Bruce said the defense will want to let jurors hear the “reality of unaltered recordings.” The jury, he said, will hear each tape twice.
“Given that the government went to extraordinary lengths to bury allegedly incriminating words amongst benign chatter, it would be particularly unfair and prejudicial to defendants to permit the government to now highlight these same words at trial through the use of subtitles or scrolling text,” Bruce said.
Justice lawyers have not filed court papers in response to the defense motion to block the government from using enhanced audio or subtitles. A DOJ spokeswoman declined to comment on the defense request.
Leon set the first jury trial for a group of four defendants, including Patel, for May 12.