10.3 Strikes, Playbacks, Recordings Played, Asides & Sidebars
Key Takeaways
Under the Guide to Judiciary Policy, no portion of a proceeding may be omitted because of an order to strike; both the stricken material and the order appear in the transcript.
A readback or playback is noted parenthetically, such as "(The record was replayed)", together with the party who requested it.
Audio or video recordings played in court are generally entered as exhibits and need not be transcribed unless the court directs.
Private communications and off-the-record conversations that are inadvertently recorded must not be included in the transcript.
Bench and sidebar parentheticals must state whether the conference was on or off the record and name the participants if not all attorneys took part.
Blueprint topics 30201 to 30205 cover what to do when an attorney strikes something, when testimony is played back, when another recording is played, when private remarks are picked up, and when counsel go to sidebar.
Striking from the record
Guide to Judiciary Policy § 520.40.10(a): "No portion of the proceeding must be omitted from the record by an order to strike. Regardless of requesting party, the material ordered stricken, as well as the order to strike, must all appear in the transcript."
That surprises many beginners. "Strike" tells the jury and the court to disregard something; it does not erase it from the record. The appellate court needs to see what was said and what was stricken.
A. He's been arrested a dozen times.
MR. PATEL: Objection. Move to strike.
THE COURT: Sustained. The answer is stricken. The
jury will disregard it.
Everything is typed, including the answer that was stricken.
Attorneys striking their own questions. "Strike that" in mid-question is ordinary speech. AAERT's paragraphing sample types it verbatim: And where did you say that these -- well, strike that, please, and let me move on to another topic.
Readbacks and playbacks
Guide § 520.40.20(d): "All readbacks and/or playbacks and the party requesting must be noted parenthetically."
- If the question or answer played back appears on the same page as the request: (The last question and/or answer was read/played back).
- If it appears on an earlier page, restate it in full, in quotation marks, within the parentheses. For electronic playbacks the Guide also gives (The record was replayed).
Do not type the replayed words a second time as if they were new testimony. The notation shows that the replay happened.
MS. SMITH: Can I get that question played back,
please?
(The record was replayed.)
THE WITNESS: All right, I think I understand now.
AAERT's blog advises reporters to log the start and end times of a playback so the transcriber can tell replayed audio from new testimony.
Other recordings or video played on the record
Guide § 520.40.10(c): "Generally, audio/video recordings played in court are entered as an exhibit in a proceeding. Since such recordings are under the direct control of the court, audio/video recordings need not be transcribed unless the court so directs."
Note it parenthetically, with times if the log gives them:
(Video recording, Government Exhibit 12, played from 2:51 p.m. to 2:53 p.m.)
If the judge directs that the recording be transcribed, or the client's instructions say so, type it as quoted material or with its own speaker IDs, and make the start and end clear.
Private communications and asides
Guide § 520.40.10(d): "Private communications and off the record conversations inadvertently recorded must not be included in the transcript."
Multi-channel systems pick up whispers at counsel table: an attorney consulting a client, co-counsel conferring, a witness muttering to a family member. These are not part of the proceeding.
- Attorney-client communications are also privileged. Transcribing them could reveal privileged strategy.
- How to tell: asides are usually low-volume, on a counsel-table channel, and not addressed to the court or questioner. Log notes may mark them.
- When in doubt, ask the client, citing the time stamp. Do not decide on your own to include a private remark, and do not include one to "be thorough."
Remarks addressed to the court, or spoken aloud for the record, are not private, even if they are unwelcome.
Sidebars and bench conferences
Guide § 520.40.20(a)(4): the designation "must note whether the bench/side bar conference is on or off the record. If all the attorneys in court are not participating in the bench/side bar conference, the parenthetical notation must so indicate."
| Situation | Notation |
|---|---|
| On the record at the bench | (Bench conference on the record) |
| Off the record, some attorneys | (Bench conference off the record with Mr. Smith, Mrs. Jones, and Mr. Adams) |
| At sidebar | (At side bar on the record) or (At side bar) |
| Return to open court | (End of discussion at side bar); (Proceedings continued in open court.) |
| Chambers | (Discussion on the record in chambers with defendant present) |
Transcribe on-the-record sidebars. They often contain the most important rulings in the case, such as objections argued out of the jury's hearing. Courts sometimes play white noise during sidebars to mask them from the jury; the sidebar microphone channel may still capture them clearly.
Do not transcribe off-the-record sidebars, even if a microphone caught them. Note that a sidebar occurred off the record.
In a jury trial, testimony headers pause during a sidebar if the sidebar runs for pages (Chapter 9), and the jury-presence notation shows when the jury is out of hearing.
The judge sustains an objection and says, "The answer is stricken; the jury will disregard it." What does the Guide to Judiciary Policy require the transcriber to do with the stricken answer?
Delete the stricken answer but keep the order to strike
Keep the stricken answer and the order to strike in the transcript
Replace the stricken answer with (stricken)
Delete both the answer and the order to strike
A defendant whispers to his attorney at counsel table, and the table microphone records it clearly. What does the Guide to Judiciary Policy direct?
Transcribe it in full because it was recorded
Transcribe it as colloquy with THE DEFENDANT as speaker
Summarize it in a parenthetical
Leave the private communication out of the transcript
During trial, a five-minute security video is played for the jury. Absent other direction, how does the Guide to Judiciary Policy treat the video's audio?
It need not be transcribed unless the court directs, since recordings played in court are generally entered as exhibits
It must be transcribed word for word as testimony
It must be summarized in the witness's answer
It must be transcribed only if it contains profanity
Sections you finish are checked off in the contents.