California Civil Jury Instructions (CACI) (2017)

5018. Audio or Video Recording and Transcription

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5018.Audio or Video Recording and Transcription
A [sound/video] recording has been admitted into evidence, and a
transcription of the recording has been provided to you. The recording
itself, not the transcription, is the evidence. The transcription is not an
official court reporter’s transcript. The transcription was prepared by a
party only for the purpose of assisting the jury in following the video-
audio recording. The transcription may not be completely accurate. It
may contain errors, omissions, or notations of inaudible portions of the
recording. Therefore, you should use the transcription only as a guide to
help you in following along with the recording. If there is a discrepancy
between your understanding of the recording and the transcription,
your understanding of the recording must prevail.
[[Portions of the recording have been deleted.] [The transcription [also]
contains strikeouts or other deletions.] You must disregard any deleted
portions of the recording or transcription and must not speculate as to
why there are deletions or guess what might have been said or done.]
[For the video deposition(s) of [name(s) of deponent(s)], the transcript of
the court reporter is the official record that you should consider as
New December 2010; Revised June 2016
Directions for Use
Give this instruction if an audio or a video recording was played at trial and
accepted into evidence. A transcription is created by a party or parties in the case
to assist the jury in following the video/audio recording. Include the second
paragraph if only a portion of the recording was received into evidence or if parts
of the transcription have been redacted. Give the last paragraph if a transcript of a
deposition was provided to the jury. (See Code Civ. Proc., § 2025.510(g); see also
CACI No. 208, Deposition as Substantive Evidence.)
Sources and Authority
• Electronic Recordings of Deposition. Cal. Rules of Court, Rule 2.1040.
“Defendant contends the trial court erred in permitting the prosecution to
provide the jury with a written transcript of the tape recording, because the
transcript was not properly authenticated as an accurate rendition of the tape
recording. [¶] Following the testimony of [witness] during the prosecution’s
case-in-chief, the prosecutor proposed to play the tape recording to the jury.
Defense counsel suggested the jury should be informed that portions of the tape
recording were unintelligible. When the trial court observed that a transcript of
the tape recording would be submitted to the jury, defense counsel voiced
concern that the jury would follow the transcript rather than independently
consider the tape recording. The trial court indicated it would listen to the tape
recording and, in the event the court determined that the transcript would assist
the jury in its understanding of the interview, a copy of the transcript would be
provided to the jury at the time of its deliberations. . . . The trial court
instructed the jury that in the event there was any discrepancy between the
jury’s understanding of the tape recording and the typed transcript, the jury’s
understanding of the recording should control.” (People v. Sims (1993) 5
Cal.4th 405, 448 [20 Cal.Rptr.2d 537, 853 P.2d 992], internal citation omitted.)
• “ ‘To be admissible, tape recordings need not be completely intelligible for the
entire conversation as long as enough is intelligible to be relevant without
creating an inference of speculation or unfairness.’ [¶] Thus, partially
unintelligible tape is admissible unless the audible portions of the tape are so
incomplete the tape’s relevance is destroyed. The fact a tape recording ‘may not
be clear in its entirety does not of itself require its exclusion from evidence
since a witness may testify to part of a conversation if that is all he heard and it
appears to be intelligible.’ ” (People v. Polk (1996) 47 Cal.App.4th 944,
952–953 [54 Cal.Rptr.2d 921], internal citations omitted.)
• “[T]ranscripts of admissible tape recordings are only prejudicial if it is shown
they are so inaccurate that the jury might be misled into convicting an innocent
man.” (Polk, supra, 47 Cal.App.4th at p. 955.)
• “During closing arguments all counsel cautioned the jury the transcript was only
a guide and to just listen to the tape. Before the jury left to deliberate, the court
again instructed it to disregard the transcript and sent that instruction into the
jury room. We presume the jurors followed the court’s instructions regarding the
tape and the use of the transcript.” (People v. Brown (1990) 225 Cal.App.3d
585, 598 [275 Cal.Rptr. 268].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 162
5California Trial Guide, Unit 100, The Oral Deposition, § 100.27 (Matthew
16 California Forms of Pleading and Practice, Ch. 193, Discovery: Depositions,
§§ 193.70 et seq., 193.172 (Matthew Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) § 7.23 (Cal CJER