In a recent decision, the New York Court of Appeals made it quite clear how important it is to carefully make a record of all of the arguments that you believe support the admission of a particular piece of evidence.
At issue in People v. Person, 2007 NY Slip Op 03959, was whether the trial court properly precluded from admission into evidence the defendant's accomplices' videotaped statements made to police, which exculpated him and contradicted their testimony at the defendant's trial.
During cross examination, defense counsel impeached the credibility of the accomplices using the transcripts of the videotaped statements and each witness acknowledged the existence of the prior inconsistent statement. Defense counsel argued that he should be able to use the videotapes, rather than the transcripts, to establish the content of the tapes and impeach the witnesses at trial.
On appeal, defendant alleged that the tapes should have been admitted since viewing the tapes would have allowed the jury to view the demeanor and hear the voices of the accomplices thus allowing then to better gauge the credibility of the accomplices.
The Court rejected this argument, stating as follows:
At trial, however, the crux of defendant's argument was that he should be able to use the videotapes, rather than the transcripts, to prove the content of the prior inconsistent statements. Defendant at that time failed to explain how the videotapes would have conveyed information beyond that provided by the verbatim transcripts of the statements. As a result, he did not preserve his current contention that Supreme Court had discretion to admit the videotapes because they were relevant to the jury's ability to reliably evaluate the credibility of the witnesses. We therefore have no occasion to consider whether the preclusion of this evidence constituted an abuse of discretion as a matter of law.
This case is yet another example of why it never hurts to set forth clearly and concisely on the record each and every reason that you can think of that might support your argument. Wouldn't you rather have an appellate decision such as this one occur in SEC ("Someone Else's Case" a la Professor Siegal)? I sure would.