5 Basic Rules Every Judge & Attorney Should Know
1. General rule: Transcripts of audio recordings played during trial may be provided to the jury to help them understand what is said in the recording. The decision to furnish jurors with copies of a transcript to assist them in listening to the audio recording is subject to the sound discretion of the trial judge. The need to provide transcripts to the jury during audio playback is generally caused by two circumstances: (1) inability to understand a portion of the tape under the circumstances in which it will be replayed; (2) the need to identify the speakers, especially if two or more persons talk at the same time.
2. Audio recording must be admitted into evidence: If an audio recording is to be played for the jury at trial, it is critical that the recording be admitted into evidence. Proper foundation regarding authenticity should be established and Crawford issues should be resolved before the recording’s admission. Playing a recording to the jury that has not been admitted into evidence may be reversible error.
3. Procedure for use of transcript during the audio playback:
a. Once the audio recording is admitted into evidence, a transcript of the audio recording should be admitted as a “court exhibit.” Foundation for the transcript is established by having the person who prepared the transcript (or took the statement) testify that he/she has listened to the recording and the transcript is an accurate transcription.
b. The transcript should be
distributed to the jury immediately prior to playing the recording, and immediately picked up from the jury after the recording is played. The transcript is not placed in evidence other than as a “court exhibit.” The transcript does not go back to the jury room.
c. Prior to playing the audio recording, the judge should give jurors the Olkon cautionary jury instruction (see section 4 below).
d. Transcript exception: In any hearing or trial of a criminal offense (including DWIs), evidence of an audio or video recording prepared by a peace officer in a law enforcement vehicle shall not be excluded on the ground that a written transcript was not prepared and available at or prior to trial. M.S. 634.36.
4. Olkon cautionary instruction on use of transcript of audio recording: Whenever jurors are provided copies of a transcript of the audio recording to assist them in listening to the tape, the court should read the following “Cautionary Instruction on Use of Transcript of Tape Recording” State v. Olkon, 299 N.W.2d 89 (Minn. 1980):
“You will each be provided with what is reported to be a transcript of the taped conversation. Because of the nature and quality of the tape, portions of the recording are difficult to hear from a distance. As a result, copies of the transcript will be provided to you to assist you in listening to the tape and will be collected from you at the conclusion of the playing of the tape. Any difference in understanding of meaning or meaning of what was said may be caused by such factors as the inflection of a voice or inaccuracies of the transcript, and you should rely upon what you hear rather than what you read if you find a difference between the tape and the transcript. The transcript is not to control. The tape recording is to control. The transcript will not be available to you during your deliberations in reaching a verdict.”
5. Replaying audio recording during deliberations: If the jury requests to listen to the audio recording during deliberations, they should be returned to the courtroom and furnished with the transcript of the recording to use while the recording is replayed. The “Olkon” cautionary jury instruction should be reread to the jury. Minn. Crim. R. Pro. 26.03, subd. 20(2) (b) states: “Any jury review of depositions or audio or video material must occur in open court. The court must instruct the jury to suspend deliberations during the review.” There should be no testimony or statements made by defense counsel or the prosecutor.
Judge Alan Pendleton
10th Judicial District
For the complete text of Judge Pendleton’s training update, with citations, visit the Judicial Training & Education Blog at www.pendletonupdates.com