Jury Charge: Oral Wording Versus the Filed Written Charge
At the close of a medical-malpractice trial in a Georgia superior court, the judge reads a 52-page jury charge. The written charge filed with the clerk states that the plaintiff must prove negligence by a 'preponderance of the evidence.' In paragraph 31, however, the judge orally says 'clear and convincing evidence.' Neither attorney objects at the charge conference or after the jury retires, and the jury returns a plaintiff's verdict. On appeal, appellant's counsel requests the transcript and argues the oral wording is reversible error. Your realtime transcript captured the oral wording exactly. The written charge is in the court file, and the judge's bench copy has a handwritten check beside paragraph 31 but no correction. The trial judge's chambers calls and asks you to 'conform the transcript to the written charge so the record is accurate.'
1. Should you conform paragraph 31 to the written charge because the judge's chambers calls it more accurate? Explain.
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No. The transcript records the oral proceedings, including the charge as actually read to the jury. The written charge is a separate court record and remains available for comparison. Conforming the transcript would change the evidence of what the jury heard and could mislead the appellate court. If the judge believes the oral wording was a slip, the remedy is an on-record correction or a settled-record procedure, not a chambers request to the reporter. Preserve your realtime file, audio, and notes. You may notify the judge and parties that the request was made, but do not silently edit the transcript.
2. How should the transcript and certificate present the discrepancy without adding argument?
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Transcribe the oral charge exactly as delivered. If the written charge is included in the transcript package, label it clearly as the court's written charge filed on a specific date, not as the reporter's transcription of the oral charge. Do not insert editorial notes such as 'error' or 'corrected' unless the court directs an on-record correction. The certificate should cover the reported proceedings and should not claim that the oral charge matches the written charge. If a correction is later ordered, include the corrected pages and a supplemental certificate that identifies what was corrected and when. The appellate court can then compare the oral transcript with the written charge.