10.1 Swearing Witnesses, Parenthetical Notations & Exhibits

Blueprint topics 30111, 30113 and 30114 cover swearing or affirming witnesses, parenthetical notations and exhibits.

Swearing and affirming witnesses

AAERT's centered oath line

From AAERT's Swearing in a Witness sample:

          MR. KENNELLY:  I'd like to call Mr. Edward Lim.
          THE COURT:  Raise your right hand, please.
        EDWARD BOYNTON LIM, PLAINTIFF'S WITNESS, SWORN
          THE COURT:  Have a seat, please.
                      DIRECT EXAMINATION
BY MR. KENNELLY:

AAERT's margin notes explain:

• "The actual words of the OATH, 'Do you solemnly swear ... I do,' are not transcribed, but are subsumed within this centered line."
• "When a witness prefers to affirm rather than swear, change SWORN to AFFIRMED."
• "Testimony may be interrupted, as when taking another witness out of order. In that case, the witness may be RESUMED."
• "A witness may also be RECALLED for further testimony later in the trial, as in a rebuttal presentation."

The line gives the witness's full name, whose witness (PLAINTIFF'S WITNESS, GOVERNMENT'S WITNESS, DEFENDANT'S WITNESS) and the status. The Scalini key: LIEUTENANT MARGARET HELLER, PLAINTIFF'S WITNESS, SWORN.

The parenthetical alternative

The Guide to Judiciary Policy (§ 520.40.10(e)) allows standard summary phrases in parentheses: (The Witness Is Sworn) and (The Witness Is Affirmed); likewise (The Jury Is Sworn). Either way, the oath's wording is not typed. On the CET practical, follow AAERT's centered-line model.

The judge's instructions around the oath ("Raise your right hand," "Have a seat") are ordinary speech and are typed verbatim.

Parenthetical notations

What they are

Guide § 520.40.20(a)(1): parenthetical notations "are a court reporter's or electronic court recorder operator's own words, enclosed in parentheses or brackets, recording some action or event. Parenthetical notations should be as short as possible but consistent with clarity and standard word usage."

Position: the open parenthesis on the fifth space and the remark starting on the sixth (§ 520.36.55); AAERT places parentheticals at the first tab.

Approved uses and examples

AAERT's blog on nonverbal communication gives more examples reporters log for transcribers: (Points to left shoulder), A (Nods affirmatively), A (No audible response), (Silently reads Exhibit A), (Consulting cell phone), and the start and end of audio or video played on the record.

When to note nonverbal behavior

The Guide (§ 520.40.20(c)) places the responsibility on "the attorneys, as well as the judge in some instances, to note for the record any significant nonverbal behavior." If counsel or the court refers to a gesture ("Let the record reflect the witness nodded"), a parenthetical may be used. AAERT notes that jurisdictions vary: some allow a parenthetical only when a judge or attorney remarks on the event.

What not to note

AAERT: "keep in mind the transcript is not a screenplay. Omit details that do not add to the clarity of the record, such as (laughing), (cell phone ringing), (clearing throat), (a knock upon the door), and the like." Never add interpretations or feelings: (Witness becomes emotional) characterizes; (Pause.) may be used when a long pause matters and is referred to.

Exhibits

AAERT's Exhibit Marking sample, with its margin notes:

          THE CLERK:  This will be Plaintiff's Exhibit 1.
     (Plaintiff's Exhibit 1 marked for identification.)
          ...
          THE COURT:  Received.
     (Plaintiff's Exhibit 1 received in evidence.)
          ...
          THE COURT:  Okay.  Mark it, and it's received.
     (Plaintiff's Exhibit 2 marked for identification and
received in evidence.)
          ...
          MS. KENNELLY:  Okay, I'll withdraw it.  It's out.
     (Plaintiff's Exhibit 3 withdrawn.)

• "Exhibit-related parentheticals begin at the FIRST TAB."
• Simple marking: (... marked for identification.)
• Simple receipt: (... received in evidence.)
• Simultaneous marking and receipt: one parenthetical with both.
• Withdrawn: (... withdrawn.)
• An exhibit offered but refused is noted the same way, with the ruling: for example, (Defendant's Exhibit B refused.), following the court's wording and the client's style.

Place the parenthetical where the event happens in the record: after the clerk announces the marking, after the judge says "received." Each marking and receipt must also appear in the index's exhibit table (Chapter 8), where an exhibit never received gets a double dash.

Describe exhibits as the record does. Use the party and number as stated (Plaintiff's Exhibit 1, Government Exhibit 3, P-1 in the index). AAERT's index guidance: if exhibit IDs are "unknown or unclear from the record, use a generic descriptor."