Can An Audio Tape With A Two Minute 'Gap' In It Be Admitted Into Evidence?:

The Supreme Court of New Jersey encounters a claim of undue prejudice in State of New Jersey v. Kingkamau Nantambu (A-97-13, Decided April 29, 2015)

Audio tapes and video tapes are a frequent coin of the realm in both federal and state criminal practice. It is increasingly rare to find a major prosecution in which the government's discovery does not now include some form of recording. There are multiple paths of varying effectiveness through which intrepid defense counsel can seek to exclude this evidence. One of the more straightforward is if the recording in question can be argued to have been incomplete in some way.

Now, one might assume that a partial recording, even if relevant, would be so inherently suspect as to preclude admission under Rule 403 of the Federal Rules of Evidence or one of its state law counterparts. But this would be a perilous assumption. Incomplete or partial tape recordings can be admitted, once authenticated and found to be trustworthy, although it can be a challenging and convoluted analysis. One such scenario was addressed last week by the Supreme Court of New Jersey in State of New Jersey v. Kingkamau Nantambu.

Mr. Nantambu was involved in a domestic dispute with his girlfriend, Crystal Aikens. As is often the case in such matters, the police were summoned. Ms. Aikens then alleged that Mr. Nantambu had threatened her with an illegally possessed firearm and such a weapon was, in fact, found to be on the premises. This resulted in Mr. Nantambu being charged with two gun offenses.

Shortly after his arrest, Ms. Aikens also reported to the police that Mr. Nantambu had contacted her and had engaged in "witness tampering", attempting to influence her future testimony in exchange for money. Ms. Aikens agreed to let two detectives from the Atlantic County Prosecutor's Office place recording equipment on her cellular telephone and listen in while she talked to Mr. Nantambu. Two earpieces were then attached to the telephone and to a digital audio recorder in order to capture the conversation while the detectives stood by.

For a time, all went quite well (from the prosecution's point of view, at least). Ms. Aikens reached Mr. Nantambu who soon had promised her money in an attempt to script what she would say going forward. He also that admitted he had, in fact, possessed a gun. Then, things took a turn. According to the detectives, during the call, Ms. Aikens shifted her position and moved the cellular telephone. This, in...