United States District Court, D. Maine
ORDER ON DEFENDANT RODNEY RUSSELL'S MOTION TO
HAVE THE AUDIO FOR THE VOIR DIRE TO BE AVAILABLE AT HEARING
ON FEBRUARY 1, 2019, CONSISTENT WITH COURT ORDER DATED MARCH
18, 2015 AT DOC # 490
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
January 28, 2019, Rodney Russell, in anticipation of an
evidentiary hearing scheduled for February 1, 2019, moved
“to have the audio recording available for use by
counsel during examination of witnesses at the forthcoming
hearing on February 1, 2019.” Def. Rodney
Russell's Mot. to Have the Audio for the Voir Dire to be
Available at Hr'g on Feb. 1, 2019, Consistent with Court
Order Dated Mar. 18, 2015 at Doc # 490 (ECF No. 824).
complete the background, on January 8, 2014, the Magistrate
Judge conducted jury voir dire in this case. Min.
Entry (ECF No. 281). On August 8, 2014, the court
reporter filed a certified transcript of the jury voir dire.
Tr. of Proceedings, Jury Trial, Jury
Selection (ECF No. 399). The court reporter certified
the transcript as correct. Id. 157:4-5 (“I
certify that the foregoing is a correct transcript from the
record of proceedings in the above-entitled matter”).
law provides that “[t]he transcript in any case
certified by the reporter . . . shall be deemed prima facie a
correct statement of the testimony taken and the proceedings
had.” 28 U.S.C. § 753. The Guide to Judiciary
Policy distinguishes between audio recordings and backup
tapes. See Guide to Judiciary Policy §
510.40.10. When “proceedings have been recorded as the
official record by electronic sound recording equipment,
” the parties may choose to purchase copies of the
electronic sound recording files, which may be less costly,
from the clerk of court in lieu of a transcript for their own
use.” Id. § 510.40.10(a). However, when a
court reporter, as in this case, files a certified
transcript, a different rule applies to so-called backup
(1) Backup recordings made by court reporters for their own
convenience and not otherwise required by 28 U.S.C. §
753 are the personal property of the court reporter.
(2) There is no public entitlement to these recordings, or to
backup recordings made for the convenience of the court. .
Id. § 510.40.10(c)(1)(2). Consistent with 28
U.S.C. § 753, the Guide to Judiciary Policy
clarifies which is the official record of the proceeding,
eliminating the potential for an ongoing controversy as to
which record of a proceeding-the recording or the court
reporter's transcript-is the “correct
Russell cites this Court's March 18, 2015 order in which
the Court resolved the proper pronunciation of a
witness's name by listening to the audio recording and
invited counsel to make arrangements to listen to the
recording to confirm the Court's understanding. Order
on Audio of Voir Dire at 1 (ECF No. 490)
(Order). The pronunciation issue arose after the
defense claimed that one of the jurors should have revealed
that he knew one of the witnesses, and when the witness
testified at the post-trial hearing, he pronounced his last
name, Koenig, in a somewhat unique way. The Court endeavored
to determine whether the Magistrate Judge who presided over
jury selection had pronounced Mr. Koenig's name the way
he pronounced it. Tr. of Proceedings, Oral
Argument 48:2-10 (ECF No. 498). To resolve this issue,
which would not have been revealed by the transcript itself,
the Court asked the Court Reporter for the audio recording,
which she provided. Having confirmed that the Magistrate
Judge pronounced Mr. Koenig's name differently from the
way Mr. Koenig pronounced it, the Court allowed counsel to
confirm what the Court had heard. Order at 1.
Koenig issue strikes the Court as very different from a
general request for a backup recording. The statute makes it
clear that the transcript is “prima facie a correct
statement of the testimony taken and the proceedings
had.” 28 U.S.C. § 753(b). As such, if the
transcript contains an inherent ambiguity, such as the proper
pronunciation of a family name, the Court may resort to the
audio backup, if available and with the Court Reporter's
acquiescence, to resolve the ambiguity. Here, by contrast,
Mr. Russell is requesting the entire backup recording, which
will necessarily raise a question as to whether the certified
transcript or the backup recording is the correct statement.
Even if it turns out that the two agree, the Court and the
attorneys will have to continually check what they are
hearing against what they are reading, and the playing of a
recording, as opposed to questioning from the transcript,
will add an unnecessary complication to the evidentiary
hearing. The playing of the recording where there is a
certified transcript of the same proceeding creates an odd
situation for the Court Reporter, who would be required to
re-transcribe what she hears in the courtroom on February 1,
2019, when she previously certified a transcript of the same
proceeding which actually took place on January 8, 2014.
Finally, the statute establishes that the certified
transcript is prima facie the correct statement and Mr.
Russell has proffered no reason to conclude otherwise.
Mr. Russell explained why he wishes to have the backup
recording made available at the upcoming evidentiary hearing.
The Court could speculate, but absent some justification for
the recording where he is able to use a certified transcript,
the Court concludes that the transcript, as the official
record of the proceeding, is the better alternative. The
Court dismisses Mr. Russell's motion without prejudice,
should he wish to reframe his argument to the Court.
Court DISMISSES without prejudice Defendant Rodney
Russell's Motion to Have the Audio for the Voir Dire to
be Available at Hearing on February 1, 2019, Consistent with
Court Order Dated March 18, 2015 at Doc # 490 (ECF No. 824).