by Sam Guiberson
Avoid Prejudging the Recorded Evidence
As lawyers begin to review the recorded evidence in undercover cases, the first mistake they often make is to assume that because there are secretly recorded conversations, those conversations must incriminate somebody of something. The second mistake of lawyers who make that first mistake is to pick up the government transcripts and read them to find out how many ways their clients are guilty. Beginning the recorded evidence review with negative presumptions about its inevitably incriminating content is a road to nowhere.
Losing the mindset of your client’s accusers requires concentrating only on the client’s understanding of what was taking place as the conversations were being recorded. Sting operations are conducted under completely different rules of conversational interaction than ordinary informal conversation. Few jurors realize what total control of the target’s physical, psychological and emotional environment occurs in an undercover operation. Until the mind numbing and meticulous work of identifying all the intricate means of control and manipulation that define undercover practices is done, there is only one perspective that gives context to the words recorded, the indictment of your client.
Following the narrative of the defendant’s state of mind through the course of multiple undercover encounters is critical because it provides an alternative context for the conversations that the jury can understand and validate in the recorded evidence. The more thorough the analysis, the more effective the defense advocacy can become, building a case from a catalog of the linguistic and psychological techniques of incrimination brought to bear against the client.
The client’s words may well be his own, but presenting the influence his accusers exert in his choice of words helps the jury distinguish between the client’s independent conduct and the undercover operation’s efforts to conform the recorded conversation to its own conviction agenda. Absent the counterpoint of the client’s subjective internal experience in the course of his contacts with the undercover operatives, juries can’t filter the evidentiary value of the recorded evidence in any context but the prosecution’s.
The defense is on a more even playing field as soon as the jury understands there is no such thing as a spontaneous undercover conversation that would have occurred just as it did, even if it were not being recorded. When trial becomes the examination of two distinct sets of behaviors, the agents’ and the client’s, the jury can see an undercover operation for what it is, a set of purposeful interactions controlling the client, each phrase part of a pre-planned conversational agenda constructed to satisfy the operational mandate to incriminate.
To convey what it was like for the defendant to be swimming like a goldfish in a fishbowl of a skillfully deployed undercover operation, the defense will have to get the jury wet. If the jury is encouraged to immerse itself in the calculated patterns of inducement, subterfuge and seduction that define the undercover method, the probative weight of the recorded evidence is up for grabs between the prosecution and the defense.
A Stream of Words Sewn Together
The starting point in evaluating recorded evidence is to analyze the recordings as a stream of continuing conversation, not as separate ones. No taped conversation is an island. The interludes between recordings, whether hours or days, are as significant as the recorded encounters themselves. It is in the intervals between undercover sessions that agents measure the yield of evidence they consider incriminating to recast the ongoing operation to resolve any incomplete undercover agendas. The next recordings will then mirror those shifts in operational focus. Successfully connecting undercover conversational patterns in one conversation with those in others establishes that these manipulations are neither inadvertent nor inconsequential.
Co-opting the prosecution’s recorded evidence requires the construction of a detailed and complex narrative of the defendant’s progression through a series of calculated exchanges. Every conversational exchange must be analyzed and noted as part of a progression of planned transitions initiated by the undercover agents. This narrative account must demonstrate both the strategic orchestration of the agents’ words and the client’s narrow window for response within the tightly controlled covert operation that envelops him. The defense must weave together the audio evidence with the document discovery to explain the disconnect between agents’ assumptions about the client’s criminal acts and the client’s innocent intentions. The defense must articulate how investigative subterfuge and innocent purpose coexist throughout a string of recorded conversations.
Using the Recorded Evidence to Defend
However the prosecution chooses to deliver undercover recordings in discovery, the audio files and transcripts are in no shape to be employed as the keystone of the defense. They must be reorganized to reflect defense objectives instead of prosecution objectives.
The prosecution of an undercover case relies upon definitive singularities of self-incrimination. Prosecutors think of them as quick steps to convictions, what I’ve described in the past as “smoking verbs.” For prosecutors, an undercover case is a trap that the defendant falls into, documenting a crime in progress. This approach to the recorded evidence stems from the traditional purpose for using audio recordings in law enforcement – to overcome disputes in testimony as to how a transaction took place, typically a drug purchase, a solicitation of prostitution, or bribery., The ostensible value of recorded evidence to law enforcement has been that, unlike witness testimony, it cannot be impeached.
Major undercover operations today rely upon sophisticated covert scenarios that feature highly orchestrated encounters with their targets. Undercover agents and informants are now no longer just microphone packing bystanders to others’ criminal initiatives, but criminally enterprising provocateurs. Undercover investigative methods have evolved into elaborate plainclothes theater events designed to capture a target’s tightly controlled responses in a dialogue scripted at every turn to compromise the soon to be defendant. The objective of undercover operations has become to capture verbal exchanges that can only be adjudicated as criminal within the parallel universe of the undercover pretext du jour.
Even though the law enforcement roles in undercover operations have become much more assertive and proactive, the recorded tape or digital audio file remains an objective record. The conversations recorded are now more of an impressionist canvas than a photograph of a crime in progress. As soon as more than a few words are exchanged, the ambiguous, conflicting and often chaotic subjective interpretations of what each participant’s words actually mean begins to control the probative value of what the recorder captures so reliably.
Charting the Depths of Conversations
To demonstrate the consistent logic of a defense oriented interpretation of the recorded conversations, the defense team must isolate every notable element of the acoustic, linguistic and emotional content found in each and every recorded exchange. The defense workup must also integrate into that timeline any other discovery documents that address the recorded content. There is no credibility in a defense narrative that does not embrace the totality of both the recorded and the documentary evidence.
To begin reviewing undercover discovery, prepare an inventory of all document, digital and recorded discovery that have any bearing on the content of the undercover conversations. All discovery that conveys the states of mind of agents, informants and the client before, during and after every recorded communication, from preliminary investigation to arrest is material, whether found on a recording or not. What is said about the recorded conversations is as important as the recordings.
Include anything that confirms or refutes recorded statements made during the undercover investigation, such as agent reports containing information about the defendant’s activities that were predicate to the undercover operation, reports about the conduct and timing of the operation, cell records and any accounts or byproducts of physical or electronic surveillance conducted during the course of the operation. All sorts of data points can provide background for the conversational gymnastics undercover agents perform to introduce and then exploit specific subject matter during undercover conversations.
Agents and informants typically insinuate their information from other investigative sources into the recorded conversations to obtain corroboration or to evoke a more prejudicial statement. Illustrating the backroom game being played behind the scenes to orchestrate every word spoken to the defendant is key to highlighting the asymmetric balance of power that exists between a large and well-resourced undercover team and its civilian target. Because the recorded conversations with the defendant are designed to produce an incriminating result, each seemingly spontaneous subject of conversation is intended to fulfill a specific objective in the process of incrimination.
By outlining every technique used by undercover operatives to manage, control and shape the defendant’s recorded responses, the jury is steered away from hearing the recorded evidence as a series of spontaneous events which the government attends with only a microphone.
There is Always More to Discover in the Discovery
Before starting the long process of classifying the recorded conversational statements of both the undercover agents and the client, investigate all of the non-verbal content found in the recordings. Listen for any inconsistencies in the surrounding sounds that suggest a break in recording. With today’s digital audio files, there are no physical traces of an edit or of a convenient interruption in recording. Digital audio analysts must rely exclusively on the continuity of background sounds and foreground speech to detect tampering. Remember that in a defense based on the content of the recordings, the defendant has an equal stake in the integrity of the recorded evidence.
Defense investigation of the nonverbal content of audio evidence goes well beyond whether the recording is authentic. Recordings capture so much more than words. There is also a wealth of acoustic information that may be of use to the defense. Listen to the recordings without transcripts, as if inspecting a crime scene, searching for every audible detail beneath and between the words being spoken. Follow the sounds that are clues to the movements and spatial relationships of everyone whose voices are heard on the recording.
Listen carefully for noises that reveal actions, such as the opening or shutting of a drawer or the closing of a door. There have been cases in which the audible opening and shutting of a desk drawer corroborated a defendant’s account over an informant’s. In one case, the sounds of a door closing established that the informant’s highly prejudicial words were spoken outside of the presence of the defendant. Such barely discernible acoustic details can become powerful evidence.
Tracing Emotional Content for Persuasive Impact
Tracing recorded behaviors that evoke emotion is best done early on in the recorded evidence review cycle, before the focus of defense efforts shifts to analyzing words on a page rather than voices on an audio. Before reading the transcripts and interpreting the recorded language with your own metrics of advantage or disadvantage to the defense, simply experience your initial feelings, just as the jury will their own. By noting and reflecting on your own impressions and the impressions of others on the defense team, the hotspots in dialogue that evoke negative or positive emotions about your client or his accusers can be taken into account.
Record the time signatures and a brief description of what emotions or impressions the conversation evoked at various stages of the recordings so that the lawyers’ working transcripts reflect the emotional content that isn’t available from the written word. The emotional tones we all hear in spoken language influence juries’ inferences about the motives and intentions of the prosecution witnesses and the defendant. Without knowing where in the recordings those moments occur, the defense is in no position to exploit or deflect them.
Finding the High Ground in the Transcripts
While the relative inaccuracy of the prosecution transcriptions may limit its understanding of the recorded evidence, it need not be a limit for the defense. When the strategy is to make the defendant’s case from the recorded evidence, it is your client’s interest that will suffer from any shortfall in the accuracy of the transcripts the defense presents.
Auditing the prosecution’s transcripts while listening to the companion audio file will identify what recorded material has been selected for transcription by the prosecution and what has not. Creating a list of these transcribing exclusions, whether only short passages or entire conversations, informs the defense of what conversations the prosecution thinks extraneous to its case. Those untranscribed recordings and any partially transcribed recordings may well include the unknown material that is useful to the defense. At best, they may contain information useful to the defense that the prosecutors failed to transcribe, rendering them helpless to anticipate its use. At the least, the defense knows that there is nothing harmful if it were to be transcribed at a later date by the prosecution.
A superior set of transcripts can provide the defense a distinct advantage. Having the “high ground” in the most complete transcription allows the defense to work its advocacy with more confidence about the subtle details of the conversations, a distinct advantage when the evidentiary angels and devils are most often found in the barely intelligible recorded passages. When skeptical jurors confirm with their own ears that the defense transcripts are more precise than the prosecution’s, defense arguments made from those transcripts gain more credibility.
Although a transcript may be unnecessary as an aid to understanding what is said in a recorded conversation, it is indispensable to the detailed analysis needed to cross-examine a prosecution witness with the recording. Once the defense is armed with a truly complete map of every word uttered into the government’s mikes, a detailed deconstruction of the topics, conversational behaviors and emotional control patterns can begin.
Deconstruct Undercover Conversations to Construct a Defense
It is counterproductive to cherry-pick the sequence of review by starting with recordings thought to be more or less incriminating. Whatever words are exchanged on a single recording, their meaning and context are drawn from all previous communications and are subject to amendment in subsequent exchanges. No conversation exists in a vacuum. No undercover tape among many is intrinsically self-explanatory. The recorded evidence must be reviewed in the chronological sequence in which it was produced to follow its narrative development, the shared references brought forward from previous conversations and the evolution in the patterns of conversational topics from one exchange to the next.
There are three categories of review that are basic to the exploitation of undercover recordings as evidence for the defense. These tactical choices are evidence that agents steer the course of a recorded conversation towards its predetermined strategic objectives. To make this argument, the defense must track all the language effects, topic effects and psychological effects in the conversations
Language effects are the means by which ordinary rules and conventions of conversation are exploited to shape a conversation into evidence of a crime. The linguistic methods of the undercover operative include controlling the introduction of new topics, the repetition or recycling of similar subject matter from past recorded or unrecorded meetings, conditioning the target to be responsive to agent’s conversational initiatives at the expense of his own and making word choices that to frame the recorded dialog in the most toxic terminology possible for future jury consumption. By organizing and then demonstrating the obvious patterns of undercover behavior, the defense can teach the jury about a covert agent’s practices in an undercover operation. Then they can hear for themselves how his verbal interplay with the defendant is organized to arouse, sustain and reinforce the most prejudicial insinuations of criminal purpose, no matter how slight the client’s engagement in those objectives.
Who dominates a conversation is important to track because it is a sign of the intent to control the agenda of a conversation and to inflate the recorded discussion with more topics of the dominant speaker’s choosing. Simple courtesy or respectful deference to an elder or a business or social superior will allow the undercover agent to build a bonfire of inflammatory rhetoric intended to prejudice the ultimate consumer of the undercover recording, the jury.
Other conversational ploys include interruption of the target and sudden topic changes to avoid a defendant’s disavowing statements from reaching the recording. The defense accentuates the uneven playing field by offering objective evidence that spontaneous exculpatory statements by the target were actively suppressed.
Purposefully vague phrasing is often employed by undercover operatives to leave ambiguity in a recorded conversation that can later be characterized as more prejudicial than were the literal words alone. Conversation in an undercover meeting can often become so devoid of specifics that parallel conversations occur. A parallel conversation is one in which the parties continue to converse without recognizing that each has a different understanding of the words being used between them. In everyday conversations, these misunderstandings are typically resolved within a sentence or two. In an undercover conversation, with an agent or informant being purposefully ambiguous, a parallel conversation can continue for much longer, creating a false impression of mutual agreement.
Over a series of recordings, the agent’s perception of how successful or unsuccessful he has been in meeting his undercover goals becomes evident from the topics he chooses to introduce again and again into the recorded conversations. Returning again to the same subject matter has twin purposes. If the recycled topic has been agreed to or resolved in a way consistent with the undercover agent’s objective to incriminate, then it will be repeated for the prejudice of multiple reinforcement. When the undercover operative recycles a topic for the target to agree or disagree, the topic recycling implies that the conversations to date have not produced the desired results. Repeated recycling to obtain more satisfactory affirmations contradicts any prosecution assertions that the prerequisites for criminal prosecution have already been achieved. Even law enforcement officers cannot say they have caught a fish unless the fish takes the bait.
Undercover conversations go through topic stages from the beginning of the operation until the end, with each stage intended to stair-step the defendant through a series of trust and bonding exercises, to explore the number and identities of like minded conspirators and to set out the predicate agreements or actions that must verify the progress of the target toward commission of an offense. At the end, the undercover agent will lead the client into that consummate recorded moment of closure during which a theatrically overblown arrest extravaganza occurs, possibly featuring special ops police, armored to their eyeballs, waving stubby machine guns, rushing into an office to neutralize the national security threat of an accounting fraud.
Patterns in the undercover agent’s choice of topics of conversation in meetings and recorded telephone calls are a virtual roadmap of the operation’s objectives. Conversation by conversation, supervising agents will script the undercover operative’s verbal overtures to calculate the optimal subject matter for the next recorded meeting. In making those adjustments to the conversational agenda for each successive encounter, the recordings provide a real-time window to the agents’ ongoing assessment of their progress in the undercover operation. When their own words clumsily mischaracterize or manipulate, or their words on tape belie the fact that their objectives have not been fulfilled by the client’s responses, the recorded evidence is beneficial to the defense.
Following how targets respond to specific topics can be very nuanced. Did the client respond deferentially or with a redirection? Was the client response either a tentative or qualified agreement? Was the defendant driven by undisclosed feelings or assumptions about his words’ purpose? Was the target compelled by fear or intimidation to conform to the undercover agent’s requests? Are repeated overtures for the same agreement made? Are threats implied? Is a hesitance voiced by the target, only to be overcome by rough insistence, derogatory statements from the undercover agent or with an offer in compromise? What topic initiation and response patterns emerge from the words of the agent and how are they distinct from those of the target? Are the undercover methods open to either the inculpation or exculpation of the target? Are there points in the operation when the target seems to falter under the weight or momentum of the plan and do the agents rally their rhetoric to restore the defendant’s further participation? Were the topics of unrecorded conversations mirrored by recital or reference in subsequent recordings? Juries must be made aware of all notable linguistic subterfuges so that they may balance the client’s degree of culpability against the undercover operatives’ ingratiation and encouragements.
Aside from conversational patterns, the psychological impact of the agent’s well chosen words are also important to note. To maintain their target’s “mission focus” within the narrow boundaries of the operation, agents will use staged anger to achieve agreement, or invoke God’s plan or make a desperate appeal to the target’s loyalty to family, nationality, tribe or church in support of the undercover agenda. To insulate the target from outside influence, undercover operatives will deny the target access to any friends or advisors who express doubts about the agent’s actions. When a target expresses fear or doubt, undercover agents do not hesitate to question his courage or manhood, or withdraw their supposed friendship and admiration from the target who has become emotionally or financially dependent.
Undercover roles and particular undercover personnel are often chosen to maximize the operation’s psychological influence over the target. An agent will pose as a desirable customer, as a mob connected businessman, as a friend of someone who the target respects, fears or owes a debt, or perhaps as just a wily Al Qaeda lieutenant, any role that will subordinate the target to the character role assumed by the agent. Older male agents may befriend younger targets to act as their business or spiritual mentors or as strong male role models or father figures.
Undercover agents exploit whatever emotional neediness they find in their targets. They often hunt the damaged stragglers in a controversial political group or choose easy targets, such as troubled people from a dysfunctional family or who are mentally challenged in some way. They will exploit financial compromise or any other hardship that would cause targets to overcome their inhibitions or conscience and go beyond their comfort zone to avoid the loss of the emotional support provided by the false persona of the undercover operative. An agent will act as an adoring admirer of his target, expressing adulation for the courage or insights of an insecure and unaccomplished individual to emotionally addict that target to the undercover agent’s direction.
Subtle psychological manipulations are not always plainly verbalized in the recordings, but they are equally powerful psychological manipulations that render an unsuspecting target more vulnerable to undercover entanglement than he would otherwise be. Much is made of a defendant’s predisposition. More needs to be made of law enforcement’s.
Advocacy in an Undercover Case
Advocating for the defense in the recorded evidence requires counsel to present a thematic cross examination of the undercover informant or agent using excerpts from the recorded conversations, focusing on their own choices of words and behaviors as well as the demonstrable patterns of manipulation and opportunistic exploitation. The defense purpose is not to ask for an explanation of the statement from the witness, but for an acknowledgement that it is present in the recorded conversation. Defense counsel can then combine such acknowledged statements to demonstrate for the jury that there is a scheme employed in the undercover conversations to exaggerate the collaboration and willful engagement of the defendant.
The defense must present example after example of undercover behaviors that demonstrate orchestrated patterns of conversational, topical and psychological compromise being leveraged together to falsely incriminate the defendant. The defendant’s behavior must also be mapped from the start date of his encounters with operatives until the arrest has occurred, in order to evaluate what actions were of the defendant’s own instigation and which were not.
Observations of agent conduct and its influence upon the defendant’s behaviors are not grasped intuitively by juries. They must be presented by the defense for what they are, strokes on a canvas that, when taken together, illustrate a very different conclusion about how the recorded conversations should be weighed as evidence. The defense advantage is not in any one agent action or suggestion, but in the overwhelming weight and number of persistent patterns of control and mischaracterizations of the defendant’s words and actions. Only when the whole body of an undercover operation is dissected to expose the prejudicial sum of its parts will the recorded evidence become the best evidence for the defense. Only then can the true voice of the defendant be heard.
Sam Guiberson advises and assists other defense attorneys in cases involving undercover operations, electronic surveillance and recorded evidence. For more information about his work, see www.guiberson.com or email firstname.lastname@example.org