USE OF TRANSCRIPTS OF AUDIO RECORDINGS AT TRIAL TO AID JURY OR JUDGE IN UNDERSTANDING WHAT IS SAID IN THE RECORDING
From MN Bench Book - Trial Procedures & Practices for Judges
TRANSCRIPTS OF AUDIO RECORDINGS TO BE PLAYED TO JURY OR JUDGE MAY BE PROVIDED TO THE JURY TO HELP THE JURY OR JUDGE UNDERSTAND WHAT IS BEING SAID IN THE REORDING
A. It is discretionary with the trial judge whether or not to allow transcripts of audio recordings to be provided to the jury for use while the recording is being played.
B. IF AN AUDIO RECORDING IS TO BE PLAYED FOR THE JURY AT TRIAL IT IS CRITICAL THAT THE AUDIO RECORDING BE ADMITTED INTO EVIDENCE. PROPER FOUNDATION REGARDING AUTHENTICITY SHOULD BE ESTABLISHED AND CRAWFORD ISSUES SHOULD BE RESOLVED BEFORE THE RECORDING’S ADMISSION
C. The need for transcripts is generally caused by two circumstances,
- Inability to understand a portion of the recording under the circumstances in which it will be replayed,
- The need to identify the speakers,
- Sometimes on a recording it appears that two or more persons are talking at the same time. It is for the jurors to determine from the tape which party talked first (and who said what). The jury should be clearly instructed that the transcript is not to control. The recording is to control.
- In either of the above situations it may be appropriate, in the sound discretion of the trial judge, to furnish the jurors with copies of a transcript of the recording to assist them in listening to the tapes.
D. In the ordinary case, furnishing such transcripts will not be prejudicially cumulative.
E. Transcripts should not ordinarily be read to the jury or given independent weight. They can be read by the jury while the jury is listening to the recording.
F. The trial judge should carefully instruct the jury that differences in meaning may be caused by such factors as the inflection in a speaker's voice or inaccuracies in the transcript and that they should, therefore, rely on what they hear rather than on what they read when there is a difference.
G. Transcripts should not ordinarily be admitted into evidence, other than as court exhibits, unless both sides stipulate to their accuracy and agree to their use as substantive evidence.
H. These guidelines recognize the need for the use of transcripts in certain instances and at the same time serve to protect against any undue emphasis which might be given to such transcripts.
I. Foundation for the admissibility of a transcript of an audio recording. Foundation may first be laid by having the person who prepared the transcript testify that s/he has listened to the recordings and accurately transcribed their contents.
J. In cases where a transcript of an audio recording is to be provided to the jury, the attorneys on both sides of the case should agree on the accuracy of the transcript. If they can not agree, the transcript should not be used. In most cases the party offering the audio recording is responsible for preparing the transcript of the recording.
K. Procedure for use of transcripts when audio recording is to be played to jury.
- .A transcript of the recording can be distributed to the jury immediately prior to the playing of that recording and immediately picked up from the jury after that recording was played. The transcripts are not placed in evidence other than as court exhibits and other than the procedure to be followed on appeal see Minn. R. Crim. P. 28.01 Subd. 9
- Only the audio recording should be admitted as substantive evidence.
- .The transcript of the audio recording can be placed into the record as a court exhibit. Doing so will make it available for review upon appeal.
L. Replaying audio recording during deliberation. If the jury requests to listen to an audio recording during deliberations, the jury should be returned to the courtroom furnished with the transcript of that recording to use while the recording is replayed. If the jury requests to review an audio recording (or a video recording or a deposition), such review shall be done in "open court." See Minn. R. Crim. P. 26.03 Subd. 20 (b). There shall be no deliberation by the jury or comment by either attorney during such review.
M. Procedure regarding transcripts of audio recording and their transcripts upon appeal. See Min. r. Crim. P. 28.01 Subd. 9. If the parties have stipulated to the accuracy of a transcript of videotape or audiotape exhibits and made it part of the district court record, it becomes part of the record on appeal and it is not necessary for the court reporter to transcribe the exhibits. If no such transcript exists, a transcript need not be prepared unless expressly requested by the appellant or the respondent. If the exhibit must be transcribed, the court reporter need not certify the correctness of this transcript.
N. It is reversible error to allow jurors to review transcripts of audio recordings if the audio recording has not been admitted into evidence. References:
- State v. Olkon, (299 N.W.2d 89 Minn., 1980.)
- (State v. Holmes, 2013 WL 2371767 Minn. 2013)