TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 12, 2018
RE: Rule 6.5, N.D.R.Ct., Electronic Recordings Presented or Offered into Evidence
As discussed in the attached e-mail from Unit 1 court administrator Scott Johnson, the Northeast Central Judicial District has a local policy on admission of electronic evidence. The policy requires a party seeking the admission of "text messages, audio recordings, emails, internet web site postings and video recordings" to provide "a certified transcript of the evidence, the device upon which the evidence is displayed or recorded, or a verbatim copy of the evidence."
Mr. Johnson suggested that the committee might wish to discuss whether developing a uniform rule on requiring transcripts when electronic evidence is offered for admission would be advisable. Judge Hager states in the attached e-mail that having a transcript of electronic evidence is vital to creating an appellate record.
Staff researched the topic and found that California had developed a detailed rule to address related to transcripts of electronic evidence. A copy of the California rule is attached. The comment to the California rule (echoing Judge Hager) states that the purpose of the rule is "to ensure that, in the event of an appeal, there is an appropriate record . . . ."
One issue that may be of some concern when transcripts of electronic evidence are required before the evidence can be admitted is the risk that the transcripts, rather the actual evidence, may be relied on by the fact finder. The leading case on this topic seems to be United States v. McMillan, 508 F.2d 101 (8th Cir. 1974). The McMillan court said that: "The best evidence of the conversation is the tape itself; the transcript should normally be used only after the defendant has had an opportunity to verify its accuracy and then only to assist the jury as it listens to the tape." It also said that: "Transcripts should not ordinarily be read to the jury or given independent weight."
A proposed new Rule of Court based on the California rule is attached. The proposed new rule focuses on transcripts of audio and audiovisual recordings. It does not address the issue of text messages, emails and internet web postings and the committee may wish to discuss whether and how to integrate these if it decides that going forward with the new rule is desirable.