Harleysville Mutual Insurance Co. v. Santora ( 1982 )

While I concur in the majority's disposition of appellant's first and third assignments of error and in the reversal of the judgment below, I must respectfully dissent from the disposition of the second assignment of error.

Evid. R. 1002 sets out the requirement that the "original" of a recording be produced to prove its contents while Evid. R. 1003 permits the use of a "duplicate" in lieu of an original. A transcript of a recording is not, of course, an original. Nor is it a duplicate within the meaning of Evid. R. 1001(4) because it is not produced by a mechanical, physical, or chemical reproduction method.

Therefore, admission into evidence of a transcript in place of the original in situations other than those designated under Evid. R. 1004 violates the best evidence rule. Stewart v.Dameron (C.A. 5, 1972), 460 F.2d 278, 279.

However, the Evidence Rules do not by their terms prohibit a transcript from being used along with an original recording and the overwhelming weight of authority is in support of such a procedure. See United States v. Slade (C.A.D.C. 1980),627 F.2d 293; United States v. Rochan (C.A. 5, 1977), 563 F.2d 1246, 1251;United States v. Onori (C.A. 5, 1976), 535 F.2d 938, 946-949;United States v. Turner (C.A. 9, 1975), 528 F.2d 143, 167-168;United States v. Hawke (C.A. 10, 1974), 505 F.2d 817, 823; UnitedStates v. McMillan (C.A. 8, 1974), 508 F.2d 101, 105; UnitedStates v. Carson (C.A. 2, 1972), 464 F.2d 424, 436-437; UnitedStates v. Hall (C.A. 4, 1965), 342 F.2d 849, 853; Baysinger v.State (1977), 261 Ark. 605, 613, 550 S.W.2d 445, 449-450; State v. Hauck (1976), 172 Conn. 140, 374 A.2d 150, 155; People v.Feld (1953), 305 N.Y. 322, 113 N.E.2d 440. Contra Duggan v.State (Fla.App. 1966), 189 So. 2d 890; Bonicelli v. State (Okla.Crim.App. 1959), 339 P.2d 1063, 1065 (dictum as to admissibility of transcript since original recording was itself inadmissible).³

Upon first impression, one might be inclined to conclude that no purpose would be served by utilizing a transcript of an original recording once the original itself has been produced. However, there are many situations in which the use of a transcript may enhance the evidentiary utility of the original and thus serve to promote the just determination of issues. Where a transcript is used along with an original recording, the trier of fact has two potential sensory channels, auditory and visual, by which to perceive the evidence and the transcript is of particular assistance to the perceiver whose visual acuity is superior to his auditory capabilities.

A transcript is especially useful where the recording is of poor quality, garbled, contains background noises or voice-over interruptions, or has been recorded at an off-speed. See UnitedStates v. Onori, supra, at 947; United States v. Wilson (C.A. 5, 1978), 578 F.2d 67, 69; United States v. Rochan, supra, at 1251; Louisell Mueller, supra, note 5, at 368. Individual idiosyncratic and dialectical variations of speakers can add to the perceptual difficulties of the listener, see United States v.John (C.A. 8, 1975), 508 F.2d 1134, 1141, while defective playback equipment can create further problems.

Moreover, the use of a transcript as an aid while listening to a recording avoids the necessity of replaying the recording many times, which not only is time-consuming but also tends to overemphasize the significance of the recording in comparison to other evidence. United States v. Turner, supra, at 168.

While it is true, as the majority suggests, that a transcript cannot capture intangibles such as voice tone, emphasis, etc., these are not lost where the recording is produced along with the transcript. Furthermore, any potential hearsay problem is minimized where the trier of fact has the original statement,i.e., the recording, in court, and is able to compare it against the alleged reproduction, i.e., the transcript, both having been properly authenticated.

The courtroom use of a transcript as suggested here would have the same status as the use of a blackboard, chart, interpreter, or other courtroom aid. United States v. Watson (C.A. 10, 1979),594 F.2d 1330, 1336; United States v. John, supra, at 1141;United States v. Turner, supra, at 167.

In the remand of this action, the jury will be the trier of fact. It is therefore necessary to elaborate a bit on the procedures which should be followed where a transcript is submitted for use as a courtroom aid.

Unless the parties are willing to stipulate to the accuracy of a transcript, the trial court, pursuant to its authority under Evid. R. 104(A) to resolve threshold questions of admissibility, should determine whether a transcript can be used in accompaniment to a recording. Where reasonable minds could differ as to the accuracy of any portions of the transcript, the court should delete inaccurate portions or, in its discretion, reject the use of the transcript entirely. See United States v. Carson,supra, at 436-437. Where audible portions of the recording are not included in a transcript, the court should order them added upon motion of any party.

Furthermore, the court, in its discretion, could grant a continuance to enable an opposing party to study the transcript and recording and to submit suggested revisions.

When satisfied of the substantial accuracy of the transcript, the court should permit the jurors, in open court and under the trial judge's direction, to follow the transcript while listening to the recording.

However, in keeping with the assumption that the transcript of the recording is not evidence but merely a listening aid, the court, upon request, should instruct the jury that the transcript itself is not to be considered as evidence.

Unless all parties mutually agree to the contrary, the transcript should not be permitted into the jury room. If both the recording and transcript are given to the jury, they might merely reread the transcript without replaying the recording. They might thereby accord the transcript evidentiary value beyond its intended use as a listening aid. A preferred procedure would be to permit the jury, under the court's direction and control, to use the transcript upon request when and if they wish to have the recording replayed. Where, however, a recording and a transcript thereof have been submitted to the jury, the determination of whether such action constitutes prejudicial or harmless error rests with a reviewing court.

The transcript should in all cases be preserved along with the recording for purposes of appellate review.

Since both the recording and transcript were preserved as a part of the record in this case, I have had the opportunity to listen to the recording and compare it with the transcript and I find that the transcript is a substantially accurate account of what is contained in the recording. While the recording was audible, I found that its quality was such that it would require several replays before its contents would be fully comprehended by the listener. I further found that use of the transcript permitted me to grasp the contents of the recording within a minimal time and without repeated recourse either to the recording or the transcript.

Though a barely audible initial segment of the recording was not transcribed, the defendant failed to request an amendment to the transcript so as to include additional audible portions of the recording.

I, therefore, conclude that the use of the transcript by the trial court as an aid while listening to the recording was both useful and proper, and that the preservation of the transcript as part of the record did not prejudice the defendant.

Accordingly, I must dissent from the majority's disposition of the second assignment of error. Otherwise I concur in the judgment of reversal.

³ See Louisell Mueller, 5 Federal Evidence, at 361-386, Section 563 (1981) (hereinafter Louisell Mueller) for extensive discussion of the use, consistent with parallel Federal Rules of Evidence, of both transcripts and electronically-enhanced rerecordings in the courtroom.