2004
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).