We have a judge that is requiring all audio and video to be transcribed. The judge has ordered that any audio or video recordings will not be admitted into evidence without a transcription. Has anyone else dealt with this or similar order? Obviously, it is unduly burdensome. Any ideas/suggestions on approaching this order?

I know this is a silly question, but does the judge have any authority for it, other than "Cause I said so?" There's nothing that would require it, and even some instances where courts have expressly disallowed it (the evidence being the audio/video, NOT the transcription). At the most, the transcription would be a demonstrative anyway, and not directly admissible. How are you supposed to proceed if there's a true dispute about what was said? Obviously, the jury is the final arbiter of fact on the issue, so providing a "transcription" which purports to resolve the matter one way or another would be a commentary on the evidence.

Is this merely an issue of a judge not wanting to be surprised by it during trial, or trying to keep out accidental violations of a motion in limine? Would it suffice if the judge were given a copy ahead of time so that they could review it in camera?.

Any transcription use is a balance between being cumulative in the case of a very clear recording, and a commentary on the evidence in an unclear recording. A blanket rule requiring their production would seem to be an obvious abuse of discretion precisely because it allows for no discretion.

It is an interesting issue. A recent Second Court of Appeals opinion on a murder case lamented the State's prolific use of recordings without transcripts, and the court ended up transcribing them itself. From my perspective doing post-conviction work, it is hard to use recordings without a transcript. Conversely, I know it costs alot of money or resources to transcribe these things, and I have participated in litigation regarding competing transcriptions.

Trial judges are vested with great discretion regarding the admission or exclusion of evidence. Just because an item might be admissible under one rule does not mean it might not be excludable under another. And it is difficult for us, with our limited right of appeal, to do anything about it.

John, do you happen to know that cite (for the 2nd COA opinion?)

Its the Stobaugh case, 02-11-00157-CR. I know the State filed a PDR. The Stobaugh opinion is about a jillion pages long--the Court's comments about transcriptions were early on in a footnote, I believe.

There has also been mandamus litigation that said the trial court could not order the State to make stuff, only produce stuff it had, in response to discovery. In re Stormer, 2007 WL 1783853. That case may have been undercut a bit by In re DISTRICT ATTORNEY'S OFFICE OF the 25TH JUDICIAL DISTRICT, 358 S.W.3d 244 (Tex. Crim. App. 2011). Or maybe not, since that case was legislatively overruled by 39.15. I think.

Since a written transcript of the recorded oral statements is not part of the predicate listed in Rule 901(a),(b) or Leos v. State, 883 S.W.2d 209, I would say that the trial judge cannot lawfully refuse to admit the evidence merely because no transcript exists. The offering party should have the choice of whether to develop a transcript for use as a jury aid.

Martin was the lead lawyer on In re Stormer, I believe. I think part of the drive on this is the fact that "all recordings are not created equal." Some are much easier to understand than others.

This message has been edited. Last edited by: JohnR,

We haven't had a judge do so, but our ADAs didn't want to watch the protracted interviews and said they would not take anything but transcription despite our argument that the candid nature of the video interview is the best product to illicit information.