In all my years as a prosecutor, I never once met a defense attorney who wanted the jury to hear their client’s voice on a tape. Even if the defendant is saying exculpatory things (oftentimes it is obviously self-serving, such as “I don’t know what you are talking about!” or “I never sold drugs!” “I did not know my pain patients were dealers”), the tape is an important window into the defendant’s soul. The jury may hate the tone, the insincerity, the way words are spoken, and the cadence of the sentences. I sometimes embraced the playing of tapes that had self-serving statements because letting the jury hear the words coming out of the mouth of the defendant far outweighed the self-serving statements of the speaker.
Plus, when strong evidence shows that the defendant is not telling the truth on tape, I would jump at playing a recording. For example, in the Eastern District of Virginia, I twice tried a prominent McLean pain doctor (William Hurwitz), against whom we had hours of tapes from his visits with patients, whom he knew were drug dealers. I played many a tape with his self-serving “I know nothing” jibberish because the documents in the file (e.g., failed drug tests and a prescription to one patient of 1,200 pain pills daily) and the testimony of other witnesses clearly showed that the defendant, who knew he was a federal target, was lying to his patients on those tapes. His hideous laugh on the tapes was also memorable. The jury found him guilty each time for essentially running a “pill mill” – and the tapes were a critical piece of the Mosaic.
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