The Witness Who Wants Off the Record
You are the official reporter in a contested custody hearing in Arkansas. A 15-year-old witness is testifying about her home life. Midway through, she asks the judge, 'Can I say this without it being written down?' The judge looks at you and says, 'Reporter, go off the record for a moment.' You stop reporting. The judge then speaks with the child for about three minutes. The judge says nothing further about the record and moves on to the next witness. Later, the mother's attorney asks you for a copy of 'everything the child said,' including the off-the-record portion. The father's attorney objects and says the off-the-record portion is privileged and not part of the record. You have notes for the off-the-record portion because you kept writing out of habit before you realized what you were doing, and those notes are incomplete.
1. What is the status of the off-the-record portion, and what should the reporter do with the incomplete notes?
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The judge's direction to go off the record removed that portion from the official record. The reporter must not treat the off-the-record exchange as transcribed testimony. The incomplete notes are not a transcript and cannot be certified or released as one. The reporter should preserve the notes (do not destroy them), disclose to the court that notes exist for part of the off-the-record exchange, and ask the judge to rule on whether the exchange should be brought onto the record, whether the notes may be reviewed, and what if anything should be made available to the parties. The reporter does not decide privilege; the judge does.
2. The mother's attorney demands the notes directly from you, citing the best interest of the child. How do you handle the demand?
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The reporter declines to release the notes directly to a party. The notes are the reporter's working papers, not the official transcript, and the off-the-record designation means the content is not part of the record absent a court order. The correct response is to tell counsel that the notes exist, that the reporter will not release them without a court order, and to direct the request to the court. If the court orders production or review, the reporter complies. The reporter should not be swayed by the sympathetic framing; the reporter's role is neutral record-keeper, and the judge controls access to off-the-record material.
3. What should the reporter have done at the moment the judge said 'go off the record'?
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Stop reporting cleanly and note on the record (or in the notes) the time and the judge's direction, so the boundary of the off-the-record portion is unambiguous. Do not continue writing out of habit after the direction; if any notes were made, note that fact immediately so it is not later a surprise. When the judge returns to the record, confirm on the record that the off-the-record portion is closed. Clear boundaries prevent exactly this dispute.