NCJ Number
14100
Journal
Hastings Law Journal Volume: 25 Issue: 4 Dated: (MARCH 1974) Pages: 1017-1042
Date Published
1974
Length
26 pages
Annotation
SOME SUGGESTIONS ON THE WAYS VIDEOTAPE CAN BE USED IN CRIMINAL PROCEEDINGS WITHOUT VIOLATING CONSTITUTIONAL RIGHTS.
Abstract
ONCE THE ACCUSATORY STAGE HAS BEEN REACHED BY A POTENTIAL CRIMINAL DEFENDANT, ANY CONFESSION OR STATEMENT WHICH HE OFFERS, TOGETHER WITH HIS MIRANDA WARNINGS, SHOULD BE TAPED. THE PRODUCT WOULD BE MORE MEANINGFUL TO THE TRIER OF FACT THAN WOULD BE A WRITTEN TRANSCRIPT, AND WOULD FURTHER AID THE PRELIMINARY DETERMINATION OF VOLUNTARINESS. LINEUPS, SHOWUPS, VIEWS OF SCENES OR VIEWS OF THE CRIME ITSELF CAN BE PRESERVED ON TAPE AND PRESENTED AT TRIAL, REMOVING THE ELEMENT OF TESTIMONIAL MISTAKE OR INCONSISTENCY. WHERE DEPOSITIONS ARE TAKEN, THEY SHOULD BE VIDEOTAPED. THIS WOULD ALLOW REVIEW OF A DEPONENT'S DEMEANOR AND HIS TESTIMONY BY THE ATTORNEY, WOULD ELIMINATE TRANSCRIPTIVE ERRORS AND, IF THE DEPOSITION IS USED AT TRIAL, WOULD BE PREFERABLE TO A WRITTEN TRANSCRIPT. PERFUNCTORY EVIDENCE AT PRELIMINARY HEARINGS, SUCH AS CHAIN OF CUSTODY EVIDENCE OR OTHER TESTIMONY WHICH NORMALLY GOES UNCHALLENGED, COULD BE RECORDED, UPON MOTION, AT THE CONVENIENCE OF THE PARTIES AND WITNESSES AND MADE A PART OF THE RECORD. ACTUAL TESTIMONY, GIVEN IN THE PRESENCE OF THE DEFENDANT, COUNSEL, AND JUDGE, WITH FULL DIRECT AND CROSSEXAMINATION AND IN FULL CONFORMITY WITH PROCEDURAL RULES, COULD BE TAPED OUT OF THE PRESENCE OF THE JURY. IT THEN COULD BE PRESENTED IN PROPER SEQUENCE BEFORE THE JURY AND IN A SETTING OPEN TO THE PUBLIC. SUCH A PROCEDURE WOULD PROTECT AN ENDANGERED WITNESS, ELIMINATE THE INCONVENIENCE TO AN EXPERT WITNESS, AND LOWER COSTS TO THE PARTY PRESENTING THE EXPERT TESTIMONY. THE TESTIMONY OF A WITNESS WHOSE FUTURE AVAILABILITY IS IN DOUBT WOULD BE PRESERVED. A FINAL PROPOSED USE OF VIDEOTAPE IS THE RECORDATION OF THE ENTIRE TRIAL. THIS CAN BE DONE UNOBTRUSIVELY AND WITHOUT RUNNING AFOUL OF ANY ETHICAL CONSIDERATIONS. THE ADVANTAGES ARE A TRANSCRIPT FREE OF ERROR AND AN IMMEDIATE TRANSCRIPT FOR USE IN PREPARATION OF AN APPEAL. FURTHERMORE, PART OR ALL OF THE TAPE, EXCLUDING ONLY THOSE PORTIONS WHICH CONTAIN LEGAL ERROR, COULD BE USED UPON RETRIAL. (AUTHOR ABSTRACT MODIFIED)