Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Thompson, 482 F.3d 781 (5th Cir. 2007)

The trial court erred in permitting the government to play a silent video, while simultaneously showing a scrolling transcript, even though there was no sound coming from the video. The transcript was based on an audio recording that was made at the time of the transaction, but the audio tape was never played for the jury. Harmless error.

Kennedy v. Lockyer, 379 F.3d 1041 (9th Cir. 2004)

The state trial court’s refusal to provide a transcript of earlier pretrial hearings that preceded the first trial (which resulted in a hung jury) to the indigent defendant violated his constitutional right to due process and required granting a writ. See Britt v. North Carolina, 404 U.S. 226 (1971). Britt is not limited to transcripts of prior trial proceedings.

United States v. Morales-Madera, 352 F.3d 1(1st Cir. 2003)

When Spanish language tapes are introduced in evidence, the court should also admit English translated transcripts. The transcripts should be introduced in evidence and the court should not instruct the jury that the tapes, and not the transcripts, are the only evidence.

United States v. Holton, 116 F.3d 1536 (D.C. Cir. 1997)

In great depth, the court reviews the various procedures that have been used around the country in admitting transcripts of undercover tapes. The three approved methods of admitting transcripts: (1) by stipulation of the parties; (2) by the court deciding which of the parties' transcripts is accurate; (3) allowing the jury to consider alternative transcripts offered by both parties. The court also held that the trial court retains the authority to exclude transcripts altogether, or to decline to allow the jury to consider transcripts while deliberating, though the preferred practice is to allow the jury to have the transcript, with appropriate cautionary instructions, during deliberations.

Fullan v. New York State Corrections Commissioner, 891 F.2d 1007 (2d Cir. 1989)

New York State courts require that a free transcript be given only to indigent appellants who proceed pro se or with assigned as opposed to retained counsel. This violates the defendants’ right to equal protection. If someone else pays for an attorney, the State must still pay for the transcript if the defendant is, in fact, indigent.

United States v. Pulido, 879 F.2d 1255 (5th Cir. 1989)

The defendant, proceeding in forma pauperis, sought a free transcript of a prior trial which resulted in a mistrial. The Fifth Circuit holds that there is no burden on the defendant to make a showing of particularized need; rather, the court should take into account the length of time between the proceedings, whether the same lawyer was involved in the prior case as is involved in the pending litigation, and whether there are adequate available alternatives.

Riggins v. Rees, 74 F.3d 732 (6th Cir. 1996)

The defendant, who is indigent, already endured two mistrials. Prior to the third trial, he requested transcripts of the first two trials. The state trial court erred in denying this request.Offering the court reporter’s tapes was not an adequate substitute. See generally Britt v. North Carolina, 404 U.S. 226 (1971).

United States v. Segines, 17 F.3d 847 (6th Cir. 1994)

The parties could not agree on a transcript of the undercover tapes. During an in camera review of the tape and the government-prepared transcript, the trial judge stated that he couldn’t make out portions of the tape and otherwise indicated that the transcripts were not accurate. Nevertheless, over objection, the court allowed the jury to have the transcripts. This was error. Also, the trial court had permitted the government to introduce a composite tape, and never admitted the original tapes. Nevertheless, during deliberations, the jury asked for the originals, which were furnished to them. This, too, was reversible error: the trial judge had never listened to the originals and they were never admitted into evidence.

United States v. Wilson, 16 F.3d 1027 (9th Cir. 1994)

The transcript in this case was so perforated with missing pages, missing volumes of testimony and an unintelligible pagination system that the conviction was reversed and a new trial ordered.