I shot the Clerk? – Why video taping testimony is so important!

One of my favorite movies is “My Cousin Vinnie”.  In one scene, Ralph Macchio, who accidently left a convenience store with an extra can of tuna fish, thinks he is being questioned about this “shoplifting” when, in fact, he is being questioned about the murder of the clerk.

A written transcript of the dialogue would be:

Q:        You paid for the groceries?

A:        [witness nods]

Q:        And then what?

A:        We went out to the car, and that’s it.

Q:        When did you shoot him?

A:        What?

Q:        At what point did you shoot the clerk?

A:        I shot the clerk

Q:        Yes, when did you shoot him?

A:        I shot the clerk

As the sheriff later testifies, Macchio’s character “confessed” to shooting the clerk.

The truth, however, was far different:

Here is the scene:


New rules went into effect on September 1, 2017 and Massachusetts lawyers can now video tape pre-trial testimony (called depositions) as a matter of right.  Formerly lawyers had to specifically request permission, which was often denied.

The superiority of audiovisual depositions to transcribed depositions is obvious. “A videotaped deposition involves an off-site deposition of a witness, recorded via videotape and transcribed by a court reporter. The deposition is attended by counsel for both sides who raise objections and examine the witness. The tape can be edited, and, if the Court rules that the witness’ testimony is admissible, all or some of the videotape is played before the jury during trial.” United States of America v. Nippon Paper Industries, Ltd. 17 F. Supp.2d 38, 39 (D. Mass. 1998).  Non-verbal communication is so important that standard jury instructions routinely advise jurors that they can consider a witness’s demeanor.

Although the transcript of Ralph Macchio’s character’s interrogation was completely accurate in reporting the words said, it was totally inaccurate in conveying the message of the speaker because it did not report the voice inflection, facial expressions, or gestures.

The conference rooms at Heinlein Beeler Mingace & Heineman are equipped with technology which allows us to video record all depositions.  This tool allows us to better represent our clients.

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