(dissenting). I agree with the opinion of the majority in its entirety with the exception of one issue which, in my view, requires a remand to the trial court for an evidentiary hearing.
During trial, defendant moved to admit a videotape interview of defendant with the defense psychiatric expert. The expert’s opinion was substantially based upon this psychiatric interview. Defendant argued that the videotape provided the best evidence of the foundation upon which the expert based his opinion. The trial court ruled that the videotape was inadmissible. The court stated that the videotape would be highly prejudicial since admission would permit defendant to testify with*332out being under oath and subject to cross-examination. The court recognized that it could instruct the jury to consider defendant’s statements during the interview not for their truth, but only as evidence of the basis of the expert’s opinion. The court concluded, however, that such a cautionary instruction would be ineffective. Moreover, since the expert would be able to testify as to the basis of his opinion, the court concluded that the probative value of the videotape was greatly diminished.
The admissibility of evidence is a matter which rests within the sound discretion of the trial court, and this Court will not overturn the trial court’s decision to admit or exclude evidence absent a clear abuse of discretion. People v Strickland, 78 Mich App 40, 54; 259 NW2d 232 (1977), lv den 402 Mich 917 (1978). The record, however, is unclear as to whether the trial court viewed the videotape prior to ruling it inadmissible. If the court did not view the videotape first, it failed to exercise any discretion. Failure to exercise discretion constitutes error. People v Hayes, 410 Mich 422, 425; 301 NW2d 828 (1981).
In People v McDaniel, 99 Mich App 582; 297 NW2d 724 (1980), the defendant argued that the trial court abused its discretion in permitting the jury to view a videotape of the defendant selling an automobile to undercover agents. In the videotape, defendant mentioned other criminal transactions in which he might have been involved. The trial court admitted the tape without viewing it. The defendant argued that the trial court could not properly determine whether the videotape’s contents were more probative than prejudicial. This Court affirmed without addressing that issue. Judge T. M. Burns dissented, however, stating in part: 'T fail to see how a judge can properly exercise his discretion in this matter without view*333ing the evidence sought to be admitted. Judge Burns noted that the McDaniel Court did not view the videotape in making its ruling. 99 Mich App 586. The same is true in the instant case.
Other jurisdictions have faced this issue with differing results. In Eaton v State, 394 A2d 217, 219 (Del, 1978), the trial court refused to permit the defendant to play for the jury a tape recording of his psychiatric interview, which took place while he was under the influence of sodium amytal. The defendant sought introduction of the tape to help explain why the psychiatrist had formed a different opinion after the examination. Without listening to the tape, the trial court excluded it because of possible prejudice and confusion. The appellate, court found no abuse of discretion, as the trial court was adequately informed of the nature of the proffered evidence and the gist of its contents, including "unrestricted testimony” by the psychiatrist "about the tape and the significance of an aural exposure to. it.” The appellate court also noted the defendant had not identified what more understanding about the offer of evidence the trial court would have had after listening to the entire tape.1_
*334On the other hand, in Pratt v State, 39 Md App 442, 451; 387 A2d 779 (1978), aff'd 284 Md 516 (1979), the defendant sought to admit a videotape of an interview with one of the defense psychiatrists. The videotape was made without the defendant’s knowledge, so that the psychiatrist could verify his impressions concerning defendant’s veracity and to confirm certain of his own observations. The trial judge did not view the tape, but merely stated he felt it would not be necessary or helpful. The videotape was not included as part of the record on appeal. The appellate court stated, 39 Md App 451:
While the absence of the tape from the record precludes us from specifically passing on its admissibility, we do not see how the trial judge could have properly exercised his discretion in deciding the evidence would not be necessary or helpful without viewing the tape.10
This states the better view.2
*335The evidence on the insanity issue was not overwhelming in the instant case, unlike the evidence showing that defendant actually killed the decedent. Evidence was presented by defendant’s expert concerning several traumatic experiences defendant had in Viet Nam, including one where a Vietnamese prostitute attacked defendant and he strangled her. Defendant was also ordered to administer medication to Viet Cong prisoners to keep them coherent while being tortured. Against this backdrop, the basis for the expert’s testimony as disclosed by the videotape interview could have been very useful to the jury in deciding the insanity question.
At the present state of these proceedings, the remedy is not a new trial. Without more information, it is impossible to determine if the trial court’s exclusion of the videotape was in error. It is entirely possible that the videotape should have been excluded. At this stage, it is only clear that the manner in which the trial court made its determination was wrong.
Accordingly, this case ought to be remanded for a hearing. The trial court and counsel should view the videotape, together or separately, and counsel should prepare arguments on whether the videotape should have been admitted. The trial court should make findings and balance the advantages and disadvantages of admitting the videotape on the record. The transcript of this hearing would then be filed with this Court and the parties would file supplemental briefs. Jurisdiction should be retained. We would then know whether failure to admit the tape was error and, if so, whether it was *336harmless. In my view this is the only way to determine whether the jury had a fair opportunity to evaluate the insanity defense — the only real issue in the case and an issue which by any view of the facts was extremely close.
Other courts have found no abuse of discretion in cases where the trial court failed to listen to the objected-to tape before playing it to the jury, similar to the situation in People v McDaniel, 99 Mich App 582; 297 NW2d 724 (1980). See United States v Bryant, 480 F2d 785, 789 (CA 2, 1973) (while correct procedure would have been for judge to listen to tape to rule on objections before jury heard it, failure to follow this procedure does not require reversal); Kerr v State, 256 Ark 738; 512 SW2d 13 (1974), cert den sub nom Pinnell v Arkansas, 419 US 1110 (1975) (defendant had ample time to acquaint himself with contents of the tape and object thereto); State v Williams, 235 Kan 485; 681 P2d 660 (1984) (trial judge need not listen to a 911 tape recording of the actual rape in progress where there was sufficient adequate testimony that the recording was accurate); State v Burdgess, 434 So 2d 1062 (La, 1983) (while better course would have been prescreening of videotape by judge with editing to delete duplicative material, failure to do so did not require reversal given significant quantity of physical evidence linked to defendant as well as his *334confession; Bey v State, 36 Md App 529; 373 A2d 1291 (1977) (the court was reluctant to require a judge in every case to listen to tape outside jury’s presence; a trial court need not listen if counsel have had opportunity to hear tape or read a transcript and object).
We do not mean to say that the trial judge must review all such evidence before ruling on its admissibility. However, where a proper foundation has been laid and the evidence would otherwise be relevant, a viewing of the tape would be necessary to a proper exercise of discretion unless the evidence is being-rejected on the grounds that it is cumulative or it is apparent that the tape is objectionable for some other reason.
As a general proposition the court in United States v Lemonakis, 158 US App DC 162; 485 F2d 941 (1973), cert den 415 US 989 (1974), noted that a trial judge should customarily hear a recording out of the jury’s presence to rule on objections to admissibility. Accord, Wright v State, 38 Ala App 64; 79 So 2d 66 (1954), cert den 262 Ala 420 (1955). In Larimer v State, 163 Ind App 673; 326 NE2d 277 (1975), it was held error to play a tape of a confession to the jury without the trial court first reviewing the tape and taking steps to delete inappropriate material, despite later instructions for the jury to disregard *335certain statements on the tape. In State v Jarvis, 56 NC App 678; 290 SE2d 228 (1982), the court approved the trial court’s listening to a tape, made by the victim while the defendant was forcing her to have sexual intercourse with him, before ruling on its admissibility.