Stricken Testimony, Jury Readback, and a Failed Audio Backup
During a two-day jury trial in New Mexico district court, you are the sole court reporter, providing realtime to the judge and both counsel. At 10:14 a.m. on cross-examination, before opposing counsel can object, the plaintiff says, 'I saw the defendant drinking at the bar an hour before the crash.' Defense counsel objects; the judge sustains the objection, instructs the jury to disregard the answer, and says, 'The answer is stricken.' Your realtime feed displayed the statement to everyone. Twenty minutes later, the jury sends a note asking, 'Can we hear the answer about drinking?' The judge asks you to read back the witness's answer. Your digital audio backup stopped recording at 9:58 a.m. and did not resume. The courtroom deputy asks whether the stricken answer should appear in the certified transcript. You have your stenographic notes and realtime file.
1. What must appear in the certified transcript regarding the stricken answer, and why?
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Include the question, the answer, the objection, the court's ruling, and the instruction to disregard. The fact that the answer was stricken does not authorize the reporter to delete it from the certified transcript: the official record must show what was said and what the court did about it. Omitting the stricken answer would make the record misleading and could impair appellate review of the ruling. Use the exact words spoken; do not add editorial comments such as 'inadmissible' or 'prejudicial.' If the court wants a notation, record the ruling verbatim. The jury note and readback request should be preserved in the log or, if made part of the record, in the transcript as directed by the judge.
2. How should you handle the judge's request to read back the answer, given the jury note?
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First clarify the scope: the judge asked for the witness's answer, but the answer was stricken and the jury was told to disregard it. The reporter should not refuse or argue in open court; ask the judge whether the readback should include the objection and ruling. Then read exactly from the stenographic notes, not from memory or the realtime file, and do not paraphrase. If the judge orders only the answer read, do so; if the judge orders the full colloquy, include it. The reporter may note for the record that the audio backup is incomplete, but should not tell the jury what to disregard. Any concern about the propriety of reading back stricken testimony is for the judge and counsel to resolve.
3. What should you do about the audio backup gap?
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Preserve the notes and realtime file; label the audio gap in the reporter's log with start and stop times. Transcribe from the stenographic notes, which are primary. Do not represent the audio as a complete backup. If the judge or parties ask, disclose the gap promptly and accurately; a certificate should not imply that audio verification was complete if it was not. If a dispute arises about the readback or transcript, the notes and realtime file can be produced under court order. Do not erase or overwrite anything.