The Charge Conference: A Judge Who Reads Something Other Than the Written Charge
You are the official reporter in a felony assault trial. Before the jury is brought in, the court holds a charge conference on the record in which counsel dispute whether one element instruction and the verdict form should read "and/or"; the judge rules that the written charge will say "and/or" and directs that the written charge be filed. The judge then reads 34 pages of instructions aloud. At page 21 the judge skips an entire paragraph and, in the element instruction, reads "or" instead of "and/or." Neither attorney objects. After the jury retires, defense counsel telephones you at home: "Just conform the transcript to the written charge - that's obviously what he meant, and we don't want an appellate issue." The filed written charge is itself part of the record on appeal.
1. Do you conform the transcript to the written charge? State the governing rule and apply it to these facts.
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No. The transcript records the proceedings as they occurred in open court - including slips, omissions, and misreadings. The written charge and the oral delivery are two distinct parts of the record, and the difference between them is often the whole appellate question.
Applying that:
- The judge said "or." Transcribe "or."
- The judge omitted the paragraph. The transcript shows the reading moving from the end of the preceding paragraph to the start of the next, with no inserted text and no reporter's note announcing an omission.
- Conforming the transcript to the filed charge would create a record of a proceeding that did not happen, and it would destroy the only contemporaneous evidence of the deviation. It would also make your certification false.
- The filed written charge already preserves what the court intended; nothing is lost by reporting the oral delivery accurately.
If counsel wants the oral reading to match the written charge, that must be accomplished on the record by the court - a rereading, a correction, or a curative instruction.
2. What may you properly do about the skipped paragraph and the "or"/"and/or" discrepancy, and what may you not do?
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Permitted:
- Bring the discrepancy factually to the judge's or counsel's attention - outside the transcript, at a break or by message - so that it can be addressed on the record. Reporters routinely do this with misread figures, skipped exhibits, and misstated names; it is notification, not correction.
- If the judge then states on the record, "The record should reflect that I omitted the fourth paragraph of page 21 and read 'or' where the charge says 'and/or,'" that statement is transcribed verbatim. The judge corrects the record; the reporter records the correction.
- If the court rereads the instruction or gives a curative instruction, transcribe that exactly, in sequence.
Not permitted:
- Inserting the omitted paragraph, bracketing "[omitted]," or writing "[sic]" after "or" - each characterizes the event or supplies language that was never spoken.
- Advising counsel on the legal significance of the discrepancy, or discussing it with the jury, the bailiff, or anyone outside the case.
- Any change to the transcript after certification outside the rules for correcting a certified transcript.
3. During deliberations the jury asks to hear the page-21 instruction again, and the judge directs you to read it aloud from the written charge. How do you report the readback?
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Report it as what it is, and make its source unmistakable on the record.
- Before reading, the readback should be placed on the record in open court, with counsel present, and the source identified - e.g., the court stating that the reporter will read from the filed written charge because the oral reading omitted a paragraph. If the court does not do this, ask, at the bench or in open court, which source you should read from, so the answer is captured.
- Transcribe the readback in the transcript at the point it occurs, with the colloquy that frames it, and a factual parenthetical identifying the speaker and source, such as: "(Whereupon, the court reporter read the element instruction from the filed written charge.)"
- Do not silently substitute the written language for the earlier oral delivery, and do not annotate the earlier page to "match." The two events stand on their own.
- Do not paraphrase, summarize, or render the instruction from memory. Read the text as directed and report it word for word, preserving page-and-line references so the reviewing court can compare the original delivery and the readback.