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Is a Written Transcript the “Best Evidence” of a Recording?

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.

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May the State Rely on an ACIS Printout to Prove Habitual Felon Status?

A person who has previously been convicted of three non-overlapping felonies who commits a new felony in North Carolina may be indicted for the new felony and may be separately indicted for obtaining habitual felon status. If the person is convicted of the new felony and of obtaining habitual felon status, the person is subject to more severe punishment for the new felony.

In State v. Waycaster, __ N.C. App. ___ (2018), the court of appeals considered whether the State could prove a prior conviction underlying the defendant’s habitual felon status by offering a printout from the state’s Automated Criminal/Infraction System (“ACIS”) into evidence.

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