Audio Tape 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.

7.15 Audio Tape Recordings and Transcripts

Note[1]

(Last revised March 2011)

[1] You are about to hear a tape recording of (describe briefly nature of recording(s)). Please listen to it very carefully.

[2] Each of you has a transcript of the tape. The transcript is just an aid to help you follow the recording as it is played. The transcript is not evidence. Only the tape itself is evidence.

[3] If what you read on the transcript differs from what you hear on the tape, you are to go by what you hear for yourself, and not what you read in the transcript. If the speakers you hear are different from those identified in the transcript, it is for you to decide who was speaking and what was said. You decide this from what you hear on the recording and any other evidence given about the identity of the speakers.

[4] The tape will be available to you in the jury room, where you may listen to it if you need to. It is up to you to decide whether or how often you want to listen to it, or any part of it again. You may listen to it as many times as you wish to help you determine who is speaking and what s/he is saying.[2]

(Where transcripts are not filed as exhibits:)

[5] Please follow carefully as the tape is played in the courtroom. The tape will be available to you in the jury room, but not the transcript. We will collect the transcripts after the tape has been played.

(Where transcripts are filed as exhibits:)

[6] You may take the transcript with you to the jury room to help you determine what is actually on the tapes. But remember, if you find any differences between the tape and the transcript you must rely on what you hear on the tapes, rather than on what is in the transcripts.

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

[7] In listening to this tape, be careful to distinguish between what (NOA) says and what others on the tape are saying. What the others say might help you figure out 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 others say. It is only what (NOA) said that is evidence concerning (NOA).

In other words, what others say may provide a context for understanding what (NOA) says; but only (NOA)’s words, as understood in this context, are evidence of what (NOA) has done or intended to do.

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

[8] In listening to this tape, be careful to distinguish between what each person on trial says and what others on the tape are saying. Anything on the tape may be helpful in determining what a particular person says and what his/her words mean. But each person charged can be held responsible only for what s/he actually says, not for what others say. Only that person’s words, as understood in context

[1] Audio tape recordings may include statements made by an accused to a person in authority, dying declarations, statements which 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.

^{^[2]}Where a trial judge decides that further instructions should be given mid-trial concerning the purpose for which the evidence may be used, the relevant final instructions may be adapted.