Criminal Jury Charge: Off-the-Record Interruption
You are reporting a criminal jury charge at 180 wpm. At 11:03 a.m., while reading a reasonable-doubt instruction, the judge says, “Let’s go off the record for a moment.” A 90-second discussion follows about a juror’s commute and a proposed 15-minute recess. Your realtime feed has already captured “Let’s go off the record” and the first six words of the discussion before the instruction registered. At 11:05 a.m. the judge says, “Back on the record. The off-record discussion is not part of the record.” The judge then resumes the charge at 180 wpm, reading a passage that includes “all twelve of you must agree” after an alternate juror has replaced a seated juror. You have no editing window during the charge, and the court’s standing order says the reporter must note off-record periods but must not transcribe off-record discussions.
1. What do you do with the words already written before the off-record instruction registered?
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I would stop transcribing immediately and treat the judge’s instruction as controlling from the moment it was spoken. The six words already captured were written before the designation registered, but they are part of the off-record discussion, not part of the record. I would mark the off-record point and, if the platform permits a retroactive deletion without disrupting the live feed, remove those six words from the realtime buffer. If the platform does not permit deletion, I would flag that segment for excision from the official transcript under the court’s correction procedure. I would not continue capturing the discussion, summarize it, or try to reconstruct it later. The standing order is explicit: note off-record periods, do not transcribe off-record discussions. The fact that the words briefly appeared in the live feed does not make them part of the official record. The priority is to prevent further capture and to ensure the final record excludes the off-record material.
2. How do you mark the off-record period in the final record, and what do you do when the judge says “The off-record discussion is not part of the record”?
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I would use clear parentheticals at the boundaries: (Off the record.) at 11:03 a.m. and (Back on the record.) at 11:05 a.m. The judge’s statement “The off-record discussion is not part of the record” is itself spoken on the record, so I would include it after the back-on-record parenthetical. I would not include the 90-second discussion about the juror’s commute or the proposed recess. The parentheticals show that a pause occurred without disclosing its content. The judge’s statement confirms the off-record status and reinforces the standing order; it does not require a summary of what was said off record. The final record should show the charge, the notation of the off-record interval, the judge’s on-record statement, and then the resumed charge. This approach preserves the integrity of the record without violating the off-record designation.
3. The judge later says on the record, “We will take a 15-minute recess.” The earlier off-record discussion mentioned the same 15-minute figure. How do you treat the earlier mention, and why does it not belong in the transcript?
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I would exclude the earlier off-record mention entirely. The fact that the same 15-minute figure later appears on the record does not convert the off-record discussion into record material. The on-record announcement is the only version that belongs in the transcript. Using the off-record mention to fill in context, explain the judge’s later statement, or add a parenthetical would violate the judge’s designation and the standing order. It could also misstate what the jury heard, because the off-record discussion was not part of the proceedings presented to them. The correct treatment is to record the on-record recess announcement as spoken and to leave the off-record interval marked only as off the record. The coincidence of the number is irrelevant; the source and status of the statement control.