Chalco v. Belair et al

Filing 163

ORDER denying 155 Motion in Limine re: Audio Transcription. Signed by Judge Vanessa L. Bryant on 10/30/2018. (Lindberg, Christina)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RENE CHALCO,
Plaintiff,
v.
CHRISTOPHER BELAIR, ROBERT
MADORE, RYAN HOWLEY, and
ANDREW KATKOCIN,
Defendants.

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No. 3:15-CV-340 (VLB)

October 30, 2018

MEMORANDUM OF DECISION DENYING DEFENDANT BELAIR’S MOTION
IN LIMINIE RE: AUDIO TRANSCRIPTION [DKT. 155]
Defendant Belair moves in liminie to exclude a transcription of his
conversation with Plaintiff on March 8, 2013. Defendant argues that the
transcription should be excluded for the following reasons: (1) the parties will
introduce the audio which is the best evidence of the conversation under Federal
Rule of Evidence 1002, (2) the accuracy of the transcription has not been verified
or authenticated, and (3) admission of the transcription would be unduly prejudicial
to the Defendant because he would have to take the time to compare the audio to
the transcription for the jury.
As a starting point, relevant evidence is admissible unless specifically
precluded. Fed. R. Evid. 402. Defendant has not cited and the Court cannot
conceive of how the transcription falls into any of the excluded categories of
material listed in Federal Rule of Evidence 402. The transcription is relevant

because it purports to depict what was uttered at the time and place of the acts
complained of. Thus, it is highly probative and relevant.
As an initial matter, transcriptions of recorded conversations are routinely
admitted in evidence. See United States v. Ben-Shimon, 249 F.3d 98, 101 (2d Cir.
2001) (“Where the recorded conversation is conducted in a foreign language, an
English language transcript may be submitted to permit the jury to understand and
evaluate the evidence.”); see also United States v. Koska, 443 F.2d 1167, 1169 (2d
Cir. 1971) (“Admission of accurate transcripts as an aid in listening to tape
recordings has been held to be a matter within the discretion of the trial judge.”);
United States v. Carson, 464 F.2d 424, 437 (2d Cir. 1972) (holding that it was “not
an abuse of discretion to admit the tapes and transcripts into evidence nor error to
allow the jury to retain the transcripts during the trial and their deliberations”);
United States v. Buck, No. 84 CR. 220-CSH, 1987 WL 17646, at *2 (S.D.N.Y. Sept. 18,
1987) (“Where the defendant does not challenge the accuracy of the transcript . . .
no problem arises in respect of the submission of the transcript to the jury,
although . . . the trial judge should take the precaution of instructing the jurors that
what they hear on the tape constitutes the evidence in the case and not what the
lawyers have agreed is an accurate transcript.”). Here, the audio is difficult to hear
and therefore admitting the transcription aids the jury in the same manner as when
an audio recording is in another language.
The Court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

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needlessly presenting cumulative evidence. Fed. R. Evid. 403. Defendant does not
challenge the accuracy of the transcription. Absent such a challenge, Defendant
has failed to show that the transcription's probative value is substantially
outweighed by a danger of unfairly prejudicing, confusing, or misleading the jury.
The audio recording is short and the sound quality is not good, therefore admitting
the transcription would not unduly delay the proceeding or waste time by admitting
needlessly cumulative evidence. Furthermore, the fact that the parties complied
with Federal Rule of Evidence 1002 by identifying the original recording does not
preclude Plaintiff from offering additional probative evidence on the same subject
which tends to aid the jury and is not misleading or unduly repetitive.
Second, “[p]rejudice alone is not sufficient to warrant exclusion under Rule
403. Virtually all evidence is prejudicial to one party or another. When a defendant
is being prosecuted for exactly what [the evidence] depicts, courts consistently
have rejected Rule 403 challenges. To justify exclusion under Rule 403, the
prejudice must be unfair, although evidence may be ‘unfairly prejudicial’ when it
alludes to the very fact to be decided.” 2 Weinstein's Federal Evidence § 403.04
(2018) (internal citations and quotations omitted). The Advisory Committee Note
to Rule 403 “explains that ‘unfair prejudice’ means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional
one. Unfairness may be found in any form of evidence that may cause a jury to
base its decision on something other than the established propositions in the case.
Prejudice is also unfair if the evidence was designed to elicit a response from the

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jurors that is not justified by the evidence.” Id. (internal citations and quotations
omitted).
Here, the need to authenticate the transcription and verify its accuracy does
not pose an unfair burden on the Defendant. To the extent Defendant challenges
its authenticity, Plaintiff can call a witness to authenticate it. In so far as its
accuracy is concerned, Defendant does not allege that it is not accurate nor does
he allege that it is technologically impossible or cost prohibitive to determine its
accuracy. Even if it were, Defendant was present and, having personal knowledge
of what transpired, he can impeach the transcription with his testimony or submit
his own version of the transcription. See United States v. Chiarizio, 525 F.2d 289,
293 (2d Cir. 1975). Given its highly probative value, mere inconvenience or frugality
is insufficient to make its prejudicial value substantially outweigh its probative
effect. Absent any other argument, Defendant fails to carry his burden of showing
that admission of the transcription is unduly prejudicial.
Finally, as described above, courts routinely give and this Court proposes
to give, a curative instruction to avoid undue reliance on the transcription. Any
such concern can be addressed in an instruction to the jury. For example, Modern
Federal Jury Instructions provides several examples of instructions for the use of
transcriptions, including the following pattern jury instruction from the Fifth
Circuit:
A typewritten transcription of an oral conversation, which can be
heard on a recording received in evidence [as Exhibit ____________]
was shown to you. The transcription also purports to identify the
speakers engaged in such conversation.

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I have admitted the transcription [as Exhibit ____________] for the
limited and secondary purpose of aiding you in following the content
of the conversation as you listen to the recording, and also to aid you
in identifying the speakers.
You are specifically instructed that whether the transcription correctly
or incorrectly reflects the content of the conversation or the identity
of the speakers is entirely for you to determine, based on your
evaluation of the testimony you have heard about the preparation of
the transcription and on your own examination of the transcription in
relation to your hearing of the recording itself as the primary evidence
of its own contents. If you should determine that the transcription is
in any respect incorrect or unreliable, you should disregard it to that
extent.
Fifth Circuit Pattern Jury Instructions: Civil Cases § 2.14 (2016). The instruction
specifically requires the jury to disregard the transcription to the extent that it
conflicts with their own understanding of the recording. See Koska, 443 F.2d 1167,
1169 n.1 (citing with approval the district court’s instruction to the jury that what
they hear on the recording controls over the typed transcription). Ultimately, the
jury will be charged with deciding what happened for itself. Courts generally
presume that jurors will abide by their oath and follow their instructions. Penry v.
Johnson, 532 U.S. 782, 799 (2001).

IT IS SO ORDERED.
/s/
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: October 30, 2018

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