The Dangers of Using Evidentiary Recordings Without Transcripts

Written transcripts of audio evidence are an extremely helpful tool in defending litigation. Frequently, in both civil and criminal trials, recordings to be placed into evidence by the prosecution are submitted to the defense without the accompaniment of a transcript. This article will explain some of the dangers associated with using audio evidence without a transcript.

Potential Concerns

The potential for jury confusion is the first major problem that accompanies evidentiary recordings without transcripts. When foreign languages are spoken in the recordings, jurors unfamiliar with these tongues may have difficulty following the spoken words without the help of a transcript. The same holds true in cases where speech recordings contain slang and/or regionally accented speech. While such transcripts are not considered evidence, they are usually permitted to be given to the jury as a means of following the dialogue.

A recording without a transcript may also place an undue burden on the attorneys of both sides of a case. For example, if several speakers are on the recording unaccompanied by a transcript, confusion may arise regarding the identity of the speakers. On one hand, prosecutors will want to clearly identify each speaker on an incriminating recording to further an indictment. Defense counsel, on the other hand, will want to challenge speaker identity and statements.

Furthermore, in situations where the speech is unclear, the stenographic ears may also pick up incorrect dialogue, resulting in a flawed transcript. Therefore, when recordings are submitted by opposing parties as evidence, it is imperative that they are accompanied by transcripts in enough time to review and make any necessary corrections.

If a pre-trial request for a recording's transcript does not result in compliance in enough time to verify the contents of the recording, a motion should be filed with the court using some of the following language (if applicable to the case):

  • "The defense has requested the prosecution to furnish transcripts of the recordings being put into evidence so that they can establish speakers' identifications, to determine whether the statements made are clear enough to bear out the contentions in the indictment and to determine whether such statements have been accurately reproduced. Such transcripts should be made and delivered no less than eight weeks before trial so that the defense can have enough time to prepare rebuttals for the defendant and perform whatever investigations may be required to help prepare the case."

 

On a technical level, there are several reasons why a review of the recordings and transcripts should be done as soon as possible. The recordings may need noise and/or volume adjustment, a process which can take many days. If the defendant claims his voice is not on a recording -- as frequently occurs when the recording is a telephone call -- the process of Voice Identification requires considerable communication between the attorney and expert so that a meeting can be coordinated with the defendant and expert to take voice exemplars. This process may take even longer if the defendant is in prison.

Even when the prosecution does include a transcript, it should never be blindly accepted as accurate. As noted above, stenographers can make typographical errors that have serious consequences. Accepting the prosecution's transcript without confirming it could open the door to an ineffective assistance of counsel claim.

Issues to Look For

In Kentucky v. Cox, a 2004 case in which I testified, some of the prosecution's interpretations of words were incorrect, and I pointed this out at trial. The single speaker on the tape spoke English with an Eastern Kentucky accent. The preparer of the prosecution's transcript had incorrectly typed five or more words articulated by the tongue-heavy defendant.

In a currently-ongoing Florida case, the defendant and a bus driver talk to each other through the driver's window. Without a transcript, the case boils down to opposing contentions of the two speakers whose voices are garbled. If the prosecution had made (and if the defense had demanded) a transcript of the voices in the state's recording, the case would be easier to litigate.

In a 911 case many years ago in Mississippi, the transcript offered by the prosecution depicted a caller asking for help because her home was being broken into. She kept the line open while she was brutally attacked and murdered. The state's transcript listed only one assailant. When I checked the recording and transcript, I heard more than one male voice. There were three attackers and they were calling each other by their names. Even though I submitted a corrected transcript, it was never entered into evidence because the one culprit, who the victim named during her call, entered into a plea agreement. Had the police made an accurate transcript, three people would have been brought to trial instead of just one.

Evidentiary recordings without transcripts have many potential drawbacks. When confronted with a recording that lacks a transcript, always request a transcript, and always verify it against the recording.