(dissenting).
If, as Haddad offered to prove, the recording complied with basic standards of reliability (see Commonwealth v. Brinkley, Ky., 362 S.W.2d 494), was made with Henderson’s knowledge, and consisted only of appropriate impeaching matter, I can see no possible justification for excluding it. Certainly it should be admissible if, as held in such cases as Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, and Commonwealth v. Brinkley, Ky., 362 S.W.2d 494, recordings of statements by the defendant in a criminal case may be admitted as substantive evidence, even where the defendant was not aware that the recording was being made.
The decision in United States v. McKeever, 2 Cir., 271 F.2d 669, does not stand for the proposition that tape recordings are not usable for the purpose sought and under the circumstances existing in the instant case. In McKeever, the reason the recording was held unusable for impeachment purposes was that it contained a great many self-serving statements by the defendant (the taped conversation was between the defendant and a witness) which could not effectively be eliminated so as to present to the jury only the impeaching statements of the witness. The court said that to permit the playing of the recording with the defendant’s statements therein would in effect amount to allowing the defendant to testify without being sworn and without opportunity for his being cross-examined. There is no such problem here, because the only statements desired to be played to the jury were those of the witness sought to be impeached. The ruling in McKeever that because documents used to refresh the recollection of a witness cannot be read to the jury, a recording cannot be played to the jury for that purpose, is of no application here, since the recording here involved was not sought to be read to refresh recollection.
It is my opinion that the trial court erred in denying permission to the defendant to show that the recording complied with the appropriate standards of reliability, and then to play to the jury the impeaching statements. It is my opinion also that the disputed testimony of Henderson was of sufficient importance to require the conclusion that the error was prejudicial.
I therefore respectfully dissent.
MILLIKEN and PALMORE, JJ., join in this dissent.