To prove a conversation, a party has the option of offering the testimony of a live witness or a tape recording of the conversation.62.2 If a party decides to enter audio recordings as evidence of the conversation, the party must then enter the complete recording. When an audio recording exists, a party cannot offer transcripts in lieu thereof when the audio recordings are available, as the audio recordings constitute the best evidence of the contents of the recording. Further, a transcript does not qualify as a “duplicate,” even if a witness vouches for the accuracy of the transcript.63 If an original audio recording is entered into evidence, however, the court has discretion also to admit accurate transcripts thereof.64
62.2. Ayers v. State, 844 A.2d 304, 310 (Del. 2004); Atkins v. State, 523 A.2d 539, 542 (Del. 1987).
63. Atkins v. State, 523 A.2d 539, 545-46 (Del. 1987).
64. Feddiman v. State, 558 A.2d 278, 290-91 (Del. 1989); Van Arsdall v. State, 486 A.2d 1, 9 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986). In such circumstance, the trial judge should instruct the jury that the audio recording, and not the transcript, is the evidence of the conversation. Feddiman v. State, 558 A.2d 278, 290-91 (Del. 1989).
© 2010 David L. Finger