The Off-the-Record Plea Discussion in the Backup Audio
During a recess in a murder trial, the judge says, “This is off the record.” The court reporter’s stenotype machine is still running, and the backup audio records the following: defense counsel says the defendant would plead to manslaughter if the State dropped the death penalty; the prosecutor responds with a possible sentence. No ruling is made. Later, in open court, the judge asks the reporter, “Was any of that on the record?” The prosecutor then asks the reporter privately to “delete that part of the audio” because plea negotiations are confidential. The reporter has already produced a daily copy of the morning session but has not yet prepared the final transcript. The court’s written policy says that all electronic backup files are retained for 90 days unless the court orders otherwise. The defense has not been told about the recording.
1. How should the reporter answer the judge’s question in open court?
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Answer truthfully but without volunteering content: “Your Honor, the backup audio was running during the recess, but the discussion was off the record. I have not included it in the transcript.” Do not pretend nothing was captured. The judge is entitled to know that a recording exists so the court can decide what to do. Do not play the audio in open court or disclose the plea terms to the prosecutor or defense without the judge’s direction.
2. Must the reporter delete the audio at the prosecutor’s request?
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No. The reporter should not delete the audio at the prosecutor’s private request. Off-record means the discussion should not appear in the official transcript, but it does not authorize destruction of the backup file. Preserve the file, label it as off-record recess material, and follow the court’s retention policy of 90 days unless the court orders otherwise. If the judge orders the file sealed or excluded from the transcript, follow that lawful order and document it. If anyone orders destruction, ask for a written order and consult the Certified Court Reporters Board or counsel, because destroying a court record can violate retention rules and appear as obstruction.
3. What should the reporter do if the prosecutor asks for a private copy of the off-record audio?
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Refuse the private request. The prosecutor should seek the material through the court by motion or subpoena, with notice to the other parties. The reporter should notify the judge that a request was made and await a court order. Do not give a copy to one side off the record; that would compromise impartiality and could disclose confidential plea discussions. The reporter’s role is to preserve the record and follow court direction, not to broker access between the parties.