Shocking videos on sites like Faceboook Live may dominate the headlines (see examples here and here), but criminal attorneys know that the humble, old-fashioned audio recording still plays a large role in many cases. The state’s evidence at trial might include recordings of jail calls, witness interviews, 911 calls, suspect interrogations, wiretap intercepts, controlled buys, incriminating voicemails, and more. To aid in presenting that evidence to the jury (especially when the quality or volume of the recording is less than ideal), some prosecutors also prepare and introduce a written transcript of what was said on the tape.
That raises a tough question: Does the introduction of a transcript of an audio recording run afoul of the “best evidence” rule? There are cases that go both ways on this issue, and at first glance the rule seems to be something along the lines of “it is a violation, except when it isn’t, and sometimes maybe it doesn’t matter anyway.”
Let’s try to clean that up a little.
The Best Evidence Rule
Shea Denning summarized this rule in a blog post last year, but just to quickly recap: Rule 1002 states that the “original” must be used in order to prove the contents of a writing, recording, or photograph, unless an exception applies. The primary exceptions to this rule are found in Rule 1004, which allows for the use of “other evidence” (e.g., testimony from a witness who saw or heard the original) to prove the contents in certain circumstances, such as when the original: (i) has been lost or destroyed; (ii) is not obtainable by legal process; (iii) is in the possession of the opposing party who is on notice and fails to produce it; or (iv) relates only to a collateral matter. The requirement to use the original is excused in a few other specific situations by Rule 1005 (Public Records), Rule 1006 (Summaries), and Rule 1007 (Testimony or Written Admission of a Party).
Finally, Rule 1003 also allows the proponent to use a “duplicate” of the original in most cases, unless there is a genuine question about the authenticity of the original or a reason why allowing the duplicate would be unfair under the circumstances. Rule 1001 defines a duplicate to mean: (i) a counterpart produced from the same impression or matrix as the original (e.g., a second printing made from the same template); or (ii) a counterpart produced by a photographic, mechanical, electronic, chemical, or other equivalent process that accurately reproduces the original (e.g., a Xerox copy of a written document).
The Argument Against the Transcript
The defendant’s objection to allowing the state to offer a written transcript of the audio recording asks the court to apply a straightforward interpretation of the rules above: this is a recording, offered to prove the contents of what was said, the original is available, it’s not a collateral matter, and a prepared transcript does not fall within the definition of a duplicate. Therefore, offering the transcript is fundamentally no different than having a witness get on the stand and testify about the contents instead of simply playing the recording for the jury, and that is not permitted under Rule 1002.
In other words, the audio recording “speaks for itself” and the state should play it as is, rather than attempting to supplement it with a nice, neat, written transcript of the contents. And yes, there is case law to back up that argument. See State v. York, 347 N.C. 79 (1997) (“The best evidence rule requires that secondary evidence offered to prove the contents of a recording be excluded whenever the original recording is available. […] In the present case, the tape recordings themselves were available, were introduced by defendant and were played for the jury. As such, the trial court properly excluded introduction of the transcripts under the best evidence rule.”).
The Argument Supporting the Transcript
The state’s argument for admitting the transcript is a little more subtle, but it highlights an important limitation on the best evidence rule. Rule 1002 bars the use of secondary evidence “to prove the content” of an original writing, recording, or photograph. But if the secondary evidence is only being offered for some other purpose, such as refreshing the witness’s recollection or to show that the witness was aware of the existence of the original, the best evidence rule does not apply. See, e.g., State v. Mlo, 335 N.C. 353 (1994) (best evidence rule did not apply to a written document that was only used to refresh witness’s memory); State v. Clark, 324 N.C. 146 (1989) (best evidence rule did not apply to exclude testimony from a witness about the contents of a life insurance policy taken out on victim when it was not offered to prove the actual content and terms of the policy, but only to show defendant’s knowledge that there was such a policy).
Extending that principle, some cases have held that if there is no genuine dispute about the contents of the original, then the secondary evidence is not actually being offered for the purpose of proving those contents, so once again the best evidence rule does not bar the admission of secondary evidence such as a transcript. See State v. Haas, 202 N.C. App. 345 (2010) (no error in admitting written transcript of former testimony, even though an original recording of that testimony was available: “Because the contents of the recording of defendant’s prior testimony in the juvenile hearing are not in question, Rule 1002 is not applicable”); see also State v. Martinez, 149 N.C. App. 553 (2002) (agent’s testimony summarizing an audio recording between co-defendants did not violate best evidence rule where contents of the conversation were not disputed by defendant, agent had actually listened to conversation and was competent to testify about it, and defendant never asked to have the tape played for the jury).
But What If the Contents Are Disputed?
What happens if the parties disagree about what is being said at a key moment in the recording? Suppose that the state contends the defendant is saying “I shot him,” while the defense believes he is only saying “I got him,” and that difference is significant in the case. Would allowing the state to introduce a transcript that uses the word “shot” instead of “got” constitute admitting other evidence of the contents of the original recording?
The published appellate cases do not squarely answer that question, but a couple of unpublished cases (see my thoughts about using unpublished cases here) indicate that allowing even a disputed transcript into evidence would not violate the best evidence rule — provided, however, that the original recording is also introduced into evidence or made available for comparison, and the judge is satisfied that the transcript accurately reflects the contents of that recording. See State v. Patel, 242 N.C. App. 679 (2015) (unpublished) (finding no error where “both the transcript and the video were offered into evidence. As a result, any omissions or inaccuracies in the transcript were remedied by the introduction of the video itself. Furthermore, we are satisfied that none of the omissions in the transcript substantially altered the key statements made by Defendant during the interview”); see also State v. Roberson, __ N.C. App. __, 791 S.E.2d 666 (2016) (unpublished) (“The audio recording was published to the jury and the transcripts only reiterated what the jury heard from the recording. The trial court also read through the transcripts with the audio to ensure their accuracy before admitting redacted versions into evidence.”).
Alternatively, even if it is error to allow a disputed transcript into evidence, it likely would not be considered prejudicial error on appeal since the jurors can compare the transcript to the original and make up their own minds as to its accuracy. See Roberson, 791 S.E.2d at 667 (2016) (unpublished) (citing York, supra, “even if it was error to admit the transcripts as secondary evidence […] it was not an error that prejudiced defendant”); State v. Fernandez, 193 N.C. App. 455 (2008) (unpublished) (finding no plain error on appeal: “The trial court allowed the State to introduce the audio recording into evidence. The trial court also allowed the State to introduce the transcript of the audio recording. Although the audio recording was the ‘best evidence’ of defendant’s interview, the admission of the transcript did not prejudice defendant. The transcript only reiterated the evidence presented through the audio recording. This assignment of error is overruled.”).
Are prepared transcripts of audio recordings common in your district? Are they typically admitted at trial? Any strong arguments for/against their admissibility that this post overlooked? Let us know about it in the comments.