dissenting.
I dissent.
This case in the horror of its facts of heritage calls for us to “walk along a dark way.” Not only was tragedy portrayed in social depravity and unadjusted criminality experienced by appellant in his youth, but now is reinforced by the life sentence at public cost, and his infinite loss. Unquestionably, the Furies will have their vengeance.1 Since horror and tragedy are not rules, principles, or standards in our criminal-justice system, this case, as should each criminal appeal, must be reviewed within other more specified criteria. I find fault with the multiple utilization of the tape-recorded investigatory confessions as constituting trial error justifying reversal, and consequently dissent.
*1354Initially, both on a procedural basis and lack of rational differentiation where jury-deliberation availability of exhibits should apply alike to civil as well as criminal proceedings, a protective approach available for uniform application should exist. The multiplied involvement of video and audio tape evidence in the jury-trial process, raising questions of the reemphasized showing by introduction to the jury-room deliberations, is measured by the increased number of such cases now to be found. See An-not., 37 A.L.R.3d 238. In Wyoming, address of the general question specifically relating to audio tapes includes Taylor v. State, Wyo., 727 P.2d 274 (1986); Chambers v. State, Wyo., 726 P.2d 1269 (1986); and Schmunk v. State, Wyo., 714 P.2d 724 (1986).
At least in the plain-error context with which we are faced in this case, see Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981), I would not find precedence, logic, or a reasoned justice system to deny discretionary capacity to the trial court to find cause and to permit reasonable deliberative time for replay of audio and video evidence in the right case and under the right circumstances. Except under the particular factors of an individual case, no discernable difference between the “confession” and other “persuasive evidence” can be found.
The reason for dissent is the way that the evidentiary material was made available here clearly inviting prejudice to the defendant. There is no justification for unlimited access and consequent uncontrolled exposure. In this case, it is hard to imagine how many times portions of the tape recording may have been replayed for analysis and emphasis among the jury members.
Thoughtful consideration among the more discerning jurisdictions has been given to this concern even where precedence has generally permitted jury deliberation-time replay. Actually, my present concern is not unnoticed by this court, since in Chambers the procedure was approved as “carefully controlled.” Chambers v. State, supra, 726 P.2d at 1275. In Franklin v. State, 74 Wis.2d 717, 247 N.W.2d 721 (1976), cited for authority in Chambers by this court, a persuasive arrangement was designed:
“We are of the opinion that the proper practice and procedure is that the trial court retain control of the jury’s exposure to confessions. If during the course of its deliberations the jury requests to hear a recorded confession replayed or a written confession reread, it is within the trial court’s discretion to grant such request. * * * The jury should then return to the courtroom, and the confession should be read to or played for the jury there.” 247 N.W.2d at 725.
Differing from the basis of decision in Chambers, I find the procedure used in this case for replay to have created the prejudicial error. Whether or not the tape should have been played at all will not be further discussed, since address can only be made as plain error, which, in itself, for a proper one-time exposure, might not be found under these circumstances. Generally, reemphasized exposure of the jury to particularly prejudicial evidence by re-running or re-showing requires justification in fact for proper exercise of judicial discretion. Conversely, it is clearly appropriate for the court to deny re-exposure. Short v. Spring Creek Ranch, Inc., Wyo., 731 P.2d 1195 (1987).
Additionally, I differ from the court’s conclusion in application of discretion to deny a right of appellant's expert witness to remain in the courtroom to hear testimony of the State’s comparable expert. On occasion, there may be justification for denial in exercised discretion, but this was not such a case. In ruling, the trial court stated:
“Well, the Court’s in a fairly difficult position here. I believe that the rules contemplate that an expert may stay in the courtroom in spite of the sequestration rule under appropriate circumstances, and probably would have allowed the State’s expert psychiatrist to be in the courtroom during Dr. Elkin’s testimony if it had been requested. Now, we do have the, quote, fairness, end quote, *1355problem. We will have another problem. I don’t know that the jury — I think the jury might question, and it might cause confusion in the jury’s mind about having one witness in the courtroom when all of the rest of the witnesses have been excluded with the exception of Wilcock, and I don’t know how the jury would construe that or could possibly construe that. The request will be denied.”
I do not find action or inaction of opposing counsel in the adjudicatory process to be a suitable determinate of “fairness” as a basis for denial to requesting counsel, as here occurred. The essential nature of the witness for defendant as facing an admitted murder charge was obvious. Perhaps counsel could have pursued the request more diligently, but long experience in trial activities teaches that over-diligent pursuit on contested court decisions has an unacceptable trial price in undesired court response. To reverse what is frequently said in affirming appellate cases, the cold, printed page does not realistically communicate what the trial court in person discerns: it does not reveal the practical drama as the trial advocate relates to and is perceived not only by the trial judge but by the jurors. “Methinks thou dost protest too much” has a real and dangerous attribute in trial conduct.
I posture a second reason why a murder-case psychiatric witness should not be subjected to the same exclusion action as is the witness whose testimony is not similarly based on individual character. The communicative factors available to the forensic psychiatrist or psychologist should not be denied by removal from the courtroom, both in relation to the defendant, and, more particularly, by analysis of the comparable opposing testimony of other expert witnesses. Perhaps the denial is not raised to the level of reversible error in this case, but surely it was wrong to deny the request. The lack of certainty and absolutism in psychiatric testimony calls for as much exposure to fact and conflicting analysis as is possible, in that “as much as possible” contact and observation can hardly be enough for the most reliable psychiatric opinion.2
I respectfully dissent.
. In the trial of Orestes in the Aeschylus drama, Eumenides, Orestes, with Athena defending, was tried for killing his mother. An exceptionally interesting and thoughtful analysis of ancient Greek mythological justice in relevance to contemporary criminal philosophy is found in the current article, Luban, Some Greek Trials: Order and Justice in Homer, Hesiod, Aeschylus and Plato, 54 Tenn.L.Rev. 279 (1987). Although the Furies’ "private vengeance” perhaps has been minimally moderated in current judicial systems, I doubt that the grotto to which they would have been restrained by continued asylum really is now to be found. What is justice, or something different that may only be vengeance, remains the eclectic quandary in our society within what is generously called the justice-delivery system.
. It may not inure to the cognitive power of appellate adjudication, but I have unsettling concern that society having failed Michael E. Stone once in his youth, does yet again fail him in this process by the life sentence here applied.