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Videotape can be played during closing

By: dmc-admin//March 8, 2010//

Videotape can be played during closing

By: dmc-admin//March 8, 2010//

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Prosecutors can play witnesses’ videotaped statements during closing arguments.

The Wisconsin Court of Appeals held on Feb. 25 that nothing in sec. 908.08 or the due process clause precludes the practice, although it advised lower courts to be cautious.

Alexander Marinez was charged with sexual assault of a child under the age of thirteen. At trial, the court admitted audiovisual recordings of statements made by two children.

After the trial, the prosecutor said he intended to play edited portions of the videotapes during closing argument. Defense counsel did not object.

After the jury found him guilty, Marinez claimed ineffective assistance of counsel based on his attorney’s failure to object to the statements.

The circuit court denied the motion, and the Court of Appeals affirmed in an opinion by Judge Margaret J. Vergeront.

Section 908.08 permits the admission of an audiovisual recording of a child’s statements at trial.

Subsection (5)(a) provides that, if the court admit such a recording, the child must be available for cross-examination.

Marinez argued that, because no witness can be called to testify during closing argument, the statute does not permit showing a video statement during closing argument.

But the court disagreed, concluding that the statue merely establishes a procedure and standards for admission of the recording as evidence at trial. The court found nothing in the statute to suggest it is intended to prohibit the use of admissible evidence during closing argument.

Thus, Marinez’ counsel could not be deficient for not objecting on this ground.

The court next held that playing the statement during closing argument did not violate due process.

The court acknowledged an Illinois case holding that the procedure is unduly prejudicial. (People v. Ammons, 622 N.E.2d 58 (Ill.App.Ct.1993).) However, that decision was based on an Illinois rule that prohibits reading verbatim from transcripts during closing arguments. Wisconsin law, in contrast, permits that practice.

In addition, the court noted case law from numerous other states holding that it does not violate due process to replay excerpts from recorded testimony during closing arguments.

Adopting the rationale of the majority of jurisdictions, the court explained, “a video statement provides more information to the jury than a reading of a transcript of the statement. The jury not only hears the witness’s words again in his or her own voice but also sees the witness again, with all the cues to credibility and meaning that demeanor conveys.”

The court added, “This makes a video statement both a more accurate presentation of the witness’s testimony than a transcript and potentially a more powerful one.”

However, the court cautioned lower courts to control the practice, both to avoid unduly long closing arguments and to prevent an undue emphasis on the testimony.

But the court concluded that a total ban on the practice was not required, and thus Marinez’ counsel was not deficient for failing to object on due process grounds either.

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