Wis JI-Criminal SM-9

This Special Material outlines the procedure that a trial judge should follow when an

audio/visual recording has been received into evidence and played at trial and a jury

requests to listen to or watch the recording during deliberations. Discussed below are the

two Wisconsin cases that have addressed this issue.

Deciding whether to replay the recording

The decision to replay an audio/visual recording is within the trial court’s discretion.1

Factors the court should consider in deciding whether to replay the exhibit include:

• whether the recording will aid the jury in proper consideration of the case;

• whether a party will be unduly prejudiced by replaying the exhibit;

• whether the exhibit could be improperly used by the jury, and;

• whether granting a replay request will unfairly over emphasize a particular piece of

evidence.2

Before responding to a jury request for a replay, the court shall advise the parties of

the request and solicit comment, ideally with the defendant present.3 Only the portions of

the recording played during trial may be played during deliberations.4 Allowing jurors to

take notes during the replay is within the discretion of the trial judge.5

Recommended procedure for replaying a recording

If the court decides to replay the recording, the best practice is for the trial judge to

bring the jury back to the courtroom and replay the recording with all parties present in

open court. In Franklin v. State, the defendant’s audio-recorded confession was played for

the jury during trial. 74 Wis. 2d 717, 720, 247 N.W.2d 721 (1976). During deliberations,

the jury requested to hear it again. Over defense counsel’s objection, the trial judge sent

the tape back into the jury room with a tape player. The Wisconsin Supreme Court held,

“[w]e cannot approve of this practice which entails the risk of breakage or accidental

erasure of the tape while it is beyond the trial court’s supervision and which presents the

danger of overemphasis of the confession relative to testimony given from the witness

stand.” Id. at 724. The Court held that the proper procedure was that the trial court retain

control of the jury’s exposure to confessions. Id. at 724-25. Thus, if the court decides to

replay a recorded confession, the jury should return to the courtroom where the confession

is replayed or reread. Id. at 725.

Thirty years after Franklin, the Court addressed this issue again in State v. Anderson,

this time in the context of a video recorded forensic interview of a child victim. 2006 WI

77, 291 Wis. 2d 673, 717 N.W.2d 74.6 The forensic interview was received into evidence

and played in its entirety at trial. Id. ¶7. During deliberations, the jury requested that the

“victim’s videotaped interview, be sent to the jury room and that a television and VCR be

provided so that the jurors could watch the victim’s videotaped interview.” Id. ¶10. The

trial court granted the request over defense counsel’s objection. Id. ¶11. The Court

concluded that the circuit court properly exercised its discretion in allowing the jury to hear

and see the victim's videotaped interview but failed to apply the correct legal standard when

it allowed the jury to view the videotape in the jury room. Id. at ¶29. The trial court should

have followed the procedure outlined in Franklin and brought the jury back into the

courtroom to view the victim’s interview in open court. Id. at ¶30. This procedure

“minimizes the risk of breakage or erasure of the recording and, more importantly, allows

a circuit court to guide the jury, with the assistance of all counsel, so that no part of the

recording is overemphasized relative to the testimony given from the witness stand.” Id.

While the case law only addresses recorded statements, the Committee has concluded

that the above-described procedure applies to any recorded evidence. When only a portion

of the recording was played during trial, the court must take special care to ensure that only

that section is played during deliberations. The court or the parties should make a record

of exactly what was played during deliberations by noting the beginning and end times

from the exhibit.