The Jury Charge Read at 190 Words per Minute
At 2:47 p.m. on the second day of a Jefferson Circuit Court jury trial, the judge begins reading a 14-page jury charge. The judge reads at roughly 190 words per minute, mispronounces 'appurtenant,' substitutes 'shall' for 'may' in one instruction, and omits a sentence about KRS 411.182 before catching himself and reading it again. The written charge has been filed with the clerk but was not marked or read into the record as an exhibit. At the bench, the judge tells you, 'Just use my written copy for the charge-it's what I meant to say.' The attorneys do not object. Your audio backup has a brief hum during the KRS 411.182 sentence. The transcript is needed for an appeal, and the notice of appeal will be filed in 20 days.
1. How should the transcript render the judge's oral reading, including the 'shall'/'may' substitution, the omitted sentence, and the audio hum? Explain what you may and may not use the written charge for.
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Treat the oral reading as the record. The transcript must show what the judge actually said, not what the filed charge says. Preserve the 'shall' for 'may' substitution as spoken; that is a substantive difference, and silently conforming the transcript to the written charge would erase the very issue an appellate court may need to review. For the omitted sentence, do not insert it at the point of omission as if it had been read. Transcribe the reading as it occurred and add a neutral parenthetical where the judge caught himself, such as '(The court then read the omitted sentence.)' Then transcribe the rereading that follows. If the hum prevents you from hearing the KRS 411.182 sentence, mark '[inaudible]' or 'unintelligible' with the time, unless your stenotype notes independently and clearly captured the words; even then, note the audio gap in a reporter's note. The written charge is useful to verify spellings and citation forms, but it is not a substitute for the spoken record. Do not let it resolve a genuine ambiguity about what was said.
2. The judge tells you at the bench, 'Just use my written copy for the charge-it's what I meant to say.' What do you do before certifying the transcript?
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Acknowledge the instruction but do not treat it as authority to alter the transcript off the record. Explain, briefly and respectfully, that the transcript must reflect the proceedings as they occurred and that a correction to the record should be made on the record with counsel present or by written order. Ask the judge to state the correction in open court, or to issue a signed order identifying the specific change. If the judge does that, prepare the transcript with the correction and a clear note showing the original reading and the court's correction, and preserve the original version. Do not accept an unsigned note or a chambers comment as a substitute. If the judge declines to put it on the record, certify the transcript as a true and correct transcript of the proceedings, with a reporter's note about the oral reading and the written charge. Notify the attorneys of the request so the record is not changed behind a party's back. The key is transparency: a correction may be made, but it must be traceable.