Audio or Video Recordings and Transcripts - National Judicial Institute

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

11.25 Audio or Video Recordings and Transcripts

Note[110]

(Last revised June 2012)

[1] During the trial, you heard an audio (or video) recording of (describe briefly nature of the recording).[111]

[2] When the recording was played, you also had a transcript. The transcript is just an aid to help you follow what was said on the recording, and by whom, as it was being played.

[3] Only the recording is evidence. It will be available to you in the jury room where you may replay it if you wish.

(Where transcripts are not filed as exhibits:)

[4] The transcript was not filed as an exhibit. It will not be available to you in the jury room.

(Where transcripts are filed as exhibits:)

[5] The transcript was also filed as an exhibit. It will be available to you in the jury room to help you determine what is actually on the recording. But remember, if you find any differences between the recording and the transcript, either about what was said or by whom, you must rely on what you hear on the recording, rather than what is in the transcript.

(Where a single accused is a speaker and the common purpose exception to the hearsay rule does not apply, add:)

[6] In listening to this recording, be careful to distinguish between what (NOA) says and what anyone else on the recording is saying. What another person says might help you determine what (NOA) says and what his/her words mean. But (NOA) can be held responsible only for what s/he actually says, not for what anyone else says, unless you find that he has adopted or agreed with what another person says. It is only what (NOA) said or adopts that is evidence concerning (NOA).

(Where more than one accused are speakers and the common purpose exception to the hearsay rule does not apply, add:)

[7] In listening to this recording, be careful to distinguish between what each person charged says and what anyone else on the recording says. Anything on the recording may be helpful in determining what a particular person says and what his/her words mean. But each person on trial can be held responsible only for what s/he actually says, or adopts, not for what anyone else says.[112]

[110] Audio recordings may include statements made by an accused to a person in authority, dying declarations, statements that are part of the res gestae, previous statements admitted for substantive purposes under R. v. B. (K.G.), [1993] 1 S.C.R. 740 and declarations made in furtherance of a common unlawful purpose. The identity of the speaker may vary.

[111] In some instances, the recordings may not be played, as for example where the language of the speakers is not the language of trial. Where this occurs, counsel may agree about the filing and reading of the transcript of translations. Several aspects of this instruction will require modification in these cases.

[112] Where a trial judge decides that further instructions should be given concerning the purpose for which the evidence may be used, the relevant Final Instructions may be adapted. See, for example, Finals 11.7 and 11.8 relating to out of court statements of an accused.

A separate instruction is required where the video recording is admitted under Code s. 715.1. See Final 11.21.