Driver Hearing

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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:

• • (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