2.09 Use of Tapes and Transcripts

At this time you are going hear conversations that were recorded. This is proper evidence for you to consider. In order to help you, I am going to allow you to have a transcript to read along as the tape is played. The transcript is merely to help you understand what is said on the tape. If you believe at any point that the transcript says something different from what you hear on the tape, remember it is the tape that is the evidence, not the transcript. Any time there is a variation between the tape and the transcript, you must be guided solely by what you hear on the tape and not by what you see in the transcript.

[In this case there are two transcripts because there is a difference of opinion as to what is said on the tape. You may disregard any portion of either or both transcripts if you believe they reflect something different from what you hear on the tape. It is what you hear on the tape that is evidence, not the transcripts.]

Comment(s)

(1) This instruction is based upon a trial court instruction approved in United States v. Mazza, 792 F.2d 1210, 1227 (1st Cir. 1986).

(2) The instruction for two transcripts is based upon United States v. Rengifo, 789 F.2d 975, 983 (1st Cir. 1986).

(3) There is abundant First Circuit caselaw concerning the admissibility of tapes, particularly when there is a dispute over their audibility and coherence. “This court has acknowledged the importance of ensuring that a transcript offered for use as a jury aid be authenticated ‘by testimony as to how they were prepared, the sources used, and the qualifications of the person who prepared them.’” United States v. Delean, 187 F.3d 60, 65 (1st Cir. 1999) (citations omitted). But ultimately the matter is left to the trial court’s “broad discretion” to decide “whether ‘the inaudible parts are so substantial as to make the rest [of the tape] more misleading than helpful.’” United States v. Jadusingh, 12 F.3d 1162, 1167 (1st Cir. 1994) (quoting United States v. Font-Ramirez, 944 F.2d 42, 47 (1st Cir. 1991)); see also United States v. DiSanto, 86 F.3d 1238, 1250-51 (1st Cir. 1996); United States v. Saccoccia, 58 F.3d 754, 781 (1st Cir. 1995); United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986). The decision whether to allow the transcripts to go to the jury also is committed to the trial judge’s discretion, as long as the judge makes clear that the tapes, not the transcripts, are the evidence. United States v. Ademaj, 170 F.3d 58, 65 (1st Cir. 1999); United States v. Young, 105 F.3d 1, 10 (1st Cir. 1997); United States v. Campbell, 874 F.2d 838, 849 (1st Cir. 1989) (citing Rengifo, 789 F.2d at 980).