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 turn, caused the recording device to fall and the wires to disconnect. By the time the recorder was retrieved, checked and the wires re-attached, two minutes had elapsed and the conversation was effectively over. The resulting recording thus had a significant gap in it.

Nonetheless, the State added bribery and witness tampering charges to Mr. Nantambu’s already-existing weapons issues. At trial, the State attempted to offer the partial recording as substantive evidence on both sets of charges. This proffer was bolstered by testimony from the detectives to the effect that they had heard portions of the unrecorded slice of the conversation and that nothing material had transpired in the missing part.

The defense objected, citing to State of New Jersey v. Driver, 38 N.J. 255 (1962), arguing that the gap in the tape made it inadmissible. The trial court agreed finding that, although the gap was not caused by any intentional conduct by the police, the very existence of a incompleteness precluded the tape’s admission. The court was also discomfited by the fact that the gap was situated immediately after one particularly damaging statement by Mr. Nantambu.

On appeal, New Jersey’s Appellate Division reversed, crediting the testimony by the detectives that nothing material was said in the two minute gap. The Supreme Court of New Jersey granted certification.

Under Driver and New Jersey law, partial tape recordings can come into evidence. But the trial court must first utilize Driver’s five part analysis applicable to all recordings proffered by the State: (i) that the device used could and did, in fact, record; (ii) that its operation was competent; (iii) that the recording is authentic; (iv) that no changes, additions or deletions were made; (v) and that any confessions on the tape were elicited voluntarily.

In the circumstances of a partial recording, it is thus really the fourth Driver element that comes to the forefront, as trial court must determine whether admission of a partial tape unduly prejudices the interests of the defendant and what the remedy should be.

Here, the Supreme Court found that gaps in a tape do not automatically require the exclusion of the entire recording. Instead, the Court instructed that an evidentiary hearing must be held on the trial court level in order to determine whether the missing portion renders the entire recording inherently unreliable. The Court also left open the possibility that strategic redactions of portions of tape made unreliable by missing material is an option that may be considered at trial.

Thus, in evaluating a partial recording, the trial court must really determine two things: first, both whether an omission or gap in the tape is unduly prejudicial and, second, if prejudice is found whether the prejudice renders all or only some of the tape untrustworthy. The trial court should then suppress only the portion deemed untrustworthy.

Since this analysis was not done below, the judgment of the Appellate Division was reversed and the matter remanded to the trial court for additional consideration.​