CORE CRIMINAL LAW SUBJECTS: Evidence: Transcripts of Audio Recordings



United States v. Craig, 60 MJ 156 (historically, courts have been hostile — unreasonably so, we believe — to the admission of written recordings of testimony or conversations; it would be irrational to exclude an adequately authenticated transcript; in our view, such exclusion is particularly inappropriate in the military justice scene, where exigencies of the service imperatively require extensive resort to recordings of interviews held in the field, and to subsequent typewritten transcriptions made at the interviewing officer’s headquarters; common sense dictates the propriety and entire safety of the use of such transcriptions in evidence).


(we believe that, subject to foundational requirements and appropriate procedural safeguards, a transcript of an audio recording may be used at courts-martial).


(it is well recognized that accurate typewritten transcripts of sound recordings, used contemporaneously with the introduction of the recordings into evidence, are admissible to assist the jury in following the recordings while they are being played; the admission of such transcripts as an aid in listening to tape recordings, like the use of photographs, drawings, maps, and mechanical models which assist understanding, is a matter committed to the sound discretion of the trial court).


(we encourage the use of transcripts as an aid in presenting evidence with audio dialogue and suggest that the military judge indicate if he or she has viewed or listened to the proffered evidence prior to ruling on its admissibility; when such a tape’s audio is poor, a transcript could assist both the trier of fact and appellate courts).


(we generally agree that, once a proper foundation is laid, recorded tapes of actual events, such as street drug sales, should be admissible despite audibility problems, background noises, or the lack of crystal clear conversations, since they directly portray what happened; however, this rule is subject to the caveat that a recording is not admissible if the unintelligible portions are so substantial as to render the recording as a whole untrustworthy; if only a part of the tape is inaudible, the military judge must determine whether those portions are so substantial as to render the entire tape untrustworthy and thus inadmissible; the military judge should clearly state on the record which portions of an audiotape are inaudible).


(in this case, because the tape itself was admissible, it was appropriate to provide the members with a substantially accurate transcript of the tape). 


(there are four important procedural protections when the government offers a transcript in a criminal case:  (1) the trial judge should review the transcript for accuracy; (2) the defense counsel should be allowed to highlight alleged inaccuracies and to introduce alternative versions; (3) the jury should be instructed that the tape, rather than the transcript, was evidence; and (4) the jury should be allowed to compare the transcript to the tape and hear counsel’s arguments as to the meaning of the conversations; we conclude that each of these four steps should guide military judges in ruling on the admissibility of transcripts). 


(regarding the first step of this process, after reviewing the transcript for accuracy, the military judge should state what portions of the tape are audible and describe the results of his or her comparison of those audible portions with the transcript). 


(regarding the second step of this process, the military judge should instruct the members that the tape recording constitutes evidence of the recorded conversations, but that the transcript is merely an interpretation of the tape; the members must also be instructed that they should disregard anything in the transcript that they do not hear on the recording itself; moreover, the military judge must ensure that the transcript is used only in conjunction with the tape recording).


(although appellate courts have differed over whether transcripts should be used only as demonstrative exhibits within the courtroom or should accompany the jurors to the deliberation room, we join the majority of federal courts of appeals in holding that trial judges have considerable discretion in determining whether to allow the fact finder to consider such transcripts during deliberations; that determination will not be reversed on appeal absent an abuse of discretion).

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