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Merging clearer audio recorded on separate device with video of child’s statement didn’t make recording inadmissible

State v. Joseph M. Marks, 2022 WI App 20; case activity (including briefs)

Given the facts in this case, the court of appeals rejects the defendant’s claim that an audiovisual recording of a child’s statement was inadmissible under § 908.08 because investigators merged a separate audio file of the interview with the video to correct a problem with the original audio.

The audio in the audiovisual recording was cutting in and out during the interview of the child, but the social worker who conducted the interview had separately recorded the audio on another device. Using a video production program, an investigator was able to align the separate audio to the video and create a recording where the video and audio matched and provided a clear, continuous sound. (¶¶6-10).

Marks argues the merged recording did not satisfy § 908.08(3)(b), which requires a  recording to be “accurate and free from excision, alteration and visual or audio distortion.” He doesn’t argue the merged recording is inaccurate; instead, he argues the process of merging a different audio with the video meant the recording was not free from excision or alteration and therefore inadmissible. (¶¶18, 21). The court of appeals disagrees:

¶22     …. The purpose of Wis. Stat. § 908.08 is to make it easier to use the videotaped statements of children in criminal and related proceedings, while preserving the defendant’s constitutional right to cross-examine witnesses. …. Given this purpose, para. (3)(b) sets forth standards for the recording shown to the jury or otherwise relied on in lieu of the child’s direct testimony. Thus, plainly, the purpose and intent of para. (3)(b) is to require, in fairness to the defendant, that the recording faithfully represent the actual content of the interview.


¶24     As indicated, the word “accurate” in Wis. Stat. § 908.08(3)(b) refers to the recording’s faithful representation of the interview content. Understood in context, then, the terms “excision,” “alteration,” and “distortion” relate to this concept of accuracy. Put another way, a recording that is impermissibly excised, altered, or distorted does not present to the fact-finder a true and complete depiction of the interview, and thus is not accurate. Accordingly, our framework considers whether the manipulation of the recording that occurred here impacted the accuracy or completeness of the final recording shown to the jury.

¶25     We now turn to the dictionary meaning of the statutory terms. …. A “distortion” is “a twisting or deforming out a natural, normal, or original shape, form, or condition.” Distortion, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1993). Based on this definition, it might be accurate to say that the original DVD contains audio distortions (the sound cuts in and out) and that it therefore does not reflect the substance of the interview. But the original DVD was not played to the jury; instead, the jury viewed the final DVD: a video containing clear and continuous sound. Because Marks points to no audio distortion in the final DVD, we conclude that this recording—the recording actually played to the jury—was free from “visual or audio distortion” under Wis. Stat. § 908.08(3)(b).

¶26     An “alteration” is a “change” or “modification.” Alteration, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1993). Along similar lines, an “excision” means “the act or procedure of” “remov[ing]” or “cut[ting] out.” Excision, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1993). Certainly, there were portions of the original DVD that were changed or removed, in that Moyer’s audio recording replaced the original audio. But we do not view Wis. Stat. §908.08(3)(b) as prohibiting this type of non-substantive modification—i.e., an alteration or excision that restores sound quality so as to more precisely capture the content of the interview. Such alteration or excision creates or enhances (as opposed to obscures) the accuracy of the recording and thus is consistent with the purpose and intent of the statute.

¶27     To be clear, our holding is narrow and applies to the facts before us. Again, there is no allegation that the final DVD is an inaccurate representation of the content of the interview. Nor does Marks challenge the State’s process for creating this DVD. He does not argue, for example, that Moyer’s audio was inaccurate or distorted or that Flessert did not properly merge the audio and video. Thus, we simply hold that neither the plain language of Wis. Stat. § 908.08 nor its underlying purpose requires us to reject the admission of a recording meeting the criteria of § 908.08(3), based solely on the State’s manipulating the original video in the manner that occurred here.

Marks also argues the child’s statement didn’t reflect her understanding that false statements are punishable and the importance of telling the truth, § 908.08(3)(c), or contain sufficient indicia of trustworthiness, § 908.08(3)(d). The court rejects these claims in a fact-intensive review of the recording. (¶¶28-35).


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