State v. Crawford , 117 Ohio App. 3d 370 ( 1996 )

I concur in the decision; however, I am compelled to discuss why the admission of the transcript of a tape recording into evidence and into the jury room in this case was error under Evid.R. 1002, the best evidence rule, albeit harmless error under these facts.

Nineteen eighty-seven was the first time in Ohio that the use of typed transcripts as a visual aid to a jury listening to the playback of a tape-recorded communication was held to be a matter within the sound discretion of the trial court under the best evidence rule. State v. Holmes (1987), 36 Ohio App.3d 44,521 N.E.2d 479. In Holmes, the rationale for permitting the transcript into the jury room was that the court reporter's version of the tapes played in the courtroom was almost unintelligible and that no material difference existed between the transcript and the tape. Therefore, the Holmes court held that under these conditions, the use of a transcript as a visual aid to a jury listening to the best evidence — the tape — was within the discretion of the trial court. Id., citing UnitedStates v. John (C.A.8, 1975), 508 F.2d 1134, 1140-1141.

This limited and rational holding was loosely restated five years later, when the Supreme Court of Ohio concluded that "[w]here there are no `material differences' between a tape admitted into evidence and a transcript given to the jury as a listening aid, there is no prejudicial error." State v. Waddy (1992), 63 Ohio St.3d 424, 445, 588 N.E.2d 819, 835, quotingHolmes, 36 Ohio App.3d at 50, 521 N.E.2d at 486.

This loose ruling presupposes that the transcript will be used as a visual aid while the jury is listening to the tape. It is essential to remember that up to this point, no one seriously would mistake the transcript for evidence, as such a belief is effectively blocked by the best evidence rule. Thus, the judge has a duty to admonish the jury in instances where a transcript is permitted in the jury room that it can only be used as an aid while the tape is played, and not as a substitute for the tape, which under the rule is the best evidence.

Following Waddy, many courts felt that transcripts could be freely distributed to jurors. For example, in State v. Graves (Oct. 6, 1994), Cuyahoga App. No. 66238, unreported, 1994 WL 547743, the court held that "[t]he use of transcripts of taped recordings as a listening aid is within the discretion of the trial court as long as the accuracy of the transcripts is not challenged," citing Waddy and Holmes. This is the holding of neither Waddy nor Holmes. In context, a transcript is permissible only when necessary as a listening aid, and only with an appropriate admonition — after all, the transcript isnot evidence.

A better rendition of the rule used to determine when a transcript may be admitted into the jury room can be found inState v. Rogan (1994), 94 Ohio App.3d 140, 640 N.E.2d 535. The Rogan court held that an authenticated transcript can be used by a jury as a listening aid while playing the tape of a recorded conversation, but the transcript cannot be admitted into evidence. The use of the transcript as a listening aid is permissible only after proper cautionary instructions have been given by the trial court. The court concluded that it is within the sound discretion of the trial court to adopt proper procedures to prevent the jury from using the transcript during deliberations. See, also, State v.Burton (May 6, 1994), Champaign App. No. 93-CA-20, unreported, 1994 WL 171225.

In the case at bar (1) the transcript was erroneously admitted into evidence; (2) the trial court erroneously failed to determine that the transcript was not an accurate reflection of the tape, although the court could have corrected this defect in the transcript; and (3) the trial court erroneously failed to admonish the jury that the transcript could be used only as a listening aid in conjunction with the tape, or to adopt other procedures to prevent the jury from using the transcript during deliberations.

Though I find these errors harmless under the facts of this case, such errors might not be harmless under different facts. Therefore, I must concur separately.