Driver Hearing
Encyclopedia
Driver hearings are evidentiary hearings a New Jersey
court must conduct before admitting a sound recording into evidence. In State v. Driver, the New Jersey Supreme Court
held that any sound recording offered into evidence at trial must be competent and relevant. In resolving such disputed questions, the court should determine that the speakers on the recording are identified, and that:
The Driver court also instructed that trial judges "should listen to the recording out of the presence of the jury before allowing it to be used" in order to
determine that the recording is "sufficiently audible, intelligible, not obviously fragmented, and . . . whether it contains any improper and prejudicial matter which ought to be
deleted." (Id. at 288). In Driver, the Court overturned defendant's murder conviction because the taped recording played for the jury was so garbled and unclear that the trial judge
instructed the jury, "[i]f you can't hear it, you can't hear it. Inaudible."
Ibid. The Court found that "[b]asic fairness
demanded [the tape's] exclusion." Ibid. The NJ Appellate Court clarified some nuances of the Driver decision vis-avis that a Driver hearing is not a strict requirement in all cases where sound recordings are offered as evidence. Rather, a defendant may waive a Driver
hearing. (State v. King, 215 N.J. Super. 504, 516 (App. Div. 1987), State v. Rockholt, 186 N.J. Super. 539, 547 (App. Div. 1982), aff'd, 96 N.J. 570 (1984)).
Moreover, a trial judge has wide discretion in applying the requirements of Driver. In State v. Zicarelli, 122 N.J. Super. 225, 238-240 (App. Div.), cert. denied, 414 U.S. 875, 94 S. Ct.
71, 38 L. Ed. 2d 120 (1973), the N.J. Appellate Division held that, even when part of a tape is inaudible, it is within the judge's discretion to admit the portions that are audible and relevant. "[I]f a tape is partially intelligible and has a probative value, it is admissible even though substantial portions thereof are inaudible." Id. at 239
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
court must conduct before admitting a sound recording into evidence. In State v. Driver, the New Jersey Supreme Court
New Jersey Supreme Court
The New Jersey Supreme Court is the highest court in the U.S. state of New Jersey. It has existed in three different forms under the three different state constitutions since the independence of the state in 1776...
held that any sound recording offered into evidence at trial must be competent and relevant. In resolving such disputed questions, the court should determine that the speakers on the recording are identified, and that:
-
- (1) the device was capable of taking the conversation or statement;
- (2) its operator was competent;
- (3) the recording is authentic and correct;
- (4) no changes, additions or deletions have been made; and
- (5) the statements, if confessions, are voluntary. (Driver, 38 N.J. at 287).
The Driver court also instructed that trial judges "should listen to the recording out of the presence of the jury before allowing it to be used" in order to
determine that the recording is "sufficiently audible, intelligible, not obviously fragmented, and . . . whether it contains any improper and prejudicial matter which ought to be
deleted." (Id. at 288). In Driver, the Court overturned defendant's murder conviction because the taped recording played for the jury was so garbled and unclear that the trial judge
instructed the jury, "[i]f you can't hear it, you can't hear it. Inaudible."
Ibid. The Court found that "[b]asic fairness
demanded [the tape's] exclusion." Ibid. The NJ Appellate Court clarified some nuances of the Driver decision vis-avis that a Driver hearing is not a strict requirement in all cases where sound recordings are offered as evidence. Rather, a defendant may waive a Driver
hearing. (State v. King, 215 N.J. Super. 504, 516 (App. Div. 1987), State v. Rockholt, 186 N.J. Super. 539, 547 (App. Div. 1982), aff'd, 96 N.J. 570 (1984)).
Moreover, a trial judge has wide discretion in applying the requirements of Driver. In State v. Zicarelli, 122 N.J. Super. 225, 238-240 (App. Div.), cert. denied, 414 U.S. 875, 94 S. Ct.
71, 38 L. Ed. 2d 120 (1973), the N.J. Appellate Division held that, even when part of a tape is inaudible, it is within the judge's discretion to admit the portions that are audible and relevant. "[I]f a tape is partially intelligible and has a probative value, it is admissible even though substantial portions thereof are inaudible." Id. at 239