Video 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.

7.16 Video Tape Recordings and Transcripts

Note[1]

(Last revised March 2011)

[1] You are going to see a video tape of (describe briefly nature of video tape). Please watch and 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 tape is the only evidence. The transcript is just an aid. It is not evidence.

[3] If what you read on the transcript differs from what you hear or see on the tape, you are to go by what you hear or see on the tape. If the words you hear are different from those you read in the transcript, or if the speakers you hear or see 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 and see on the tape 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 watch it again if you need to. It is up to you to decide whether you want to watch it, or any part of it again. You may watch it as many times as you wish to help you determine who the speakers are and what they are 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 transcript 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 see or hear on the tapes, rather than on 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:)

[7] As you watch and listen 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, can be used as 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] As you watch and listen 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. In other words, what others say may provide a context for understanding what a particular person says; but only that person's words, as understood in this context, can be used as evidence of what that person has done or intended to do.

[1] Video 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 instructions may be adapted. A separate instruction is required where the video tape is admitted under Code, s. 715.1. See Final 11.21.