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2.5 Transcript of Tape Recording

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2.5 TRANSCRIPT OF TAPE RECORDING

You [are about to listen] [have listened] to a tape recording that has been received in evidence. [Please listen to it very carefully.] Each of you [has been] [was] given a transcript of the recording to help you identify speakers and as a guide to help you listen to the tape. However, bear in mind that the tape recording is the evidence, not the transcript. If you [hear] [heard] something different from what [appears] [appeared] in the transcript, what you heard is controlling. After the tape has been played, the transcript will be taken from you.

Comment

See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (the recording itself is the evidence to be considered; the transcript is merely an aid).

See United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir. 2004) (court instructed jury that transcripts were only aids to understanding and that the recordings themselves were evidence).

The committee recommends that this instruction be given immediately before a tape recording is played so that the jury is alerted to the fact that what they hear is controlling. It need not be repeated if more than one tape recording is played. It is good practice to remind the jury that the tape recording and not the transcript is the evidence, and that they should disregard anything in the transcript that they do not hear.

See Instructions 2.6 (Transcript of Recording in Foreign Language), and 2.7 (Foreign Language Testimony).