Sidebar Sealing and Off-the-Record Bench Conference
You are reporting a pretrial suppression hearing in People v. Andre Baptiste, Supreme Court, New York County. At 11:47 a.m. the judge holds a sidebar with counsel; the court officer turns on a white-noise machine. At 11:52 the judge says, 'The sidebar is concluded; the record may reflect the court's ruling denying the motion.' Later, defense counsel asks the court to seal the sidebar transcript because it discusses a confidential informant. The prosecutor objects, arguing the public has a right of access. At 2:10 p.m. the judge holds another bench conference about scheduling and says, 'This is off the record.' You have notes of both conferences. The judge asks you to prepare the transcript for filing by tomorrow morning and to 'handle the sealing issue appropriately.'
1. How should the 11:47 a.m. sidebar and the 2:10 p.m. off-the-record bench conference be marked in the transcript?
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Treat the two conferences differently based on the judge's directions. The 11:47 sidebar was held with white noise, but the judge later placed the ruling on the record. The transcript should show that a sidebar occurred and should include the on-record ruling, for example: '(Whereupon, a sidebar conference was held off the record at 11:47 a.m.)' followed by the judge's 11:52 statement. Do not insert the sidebar discussion itself unless the judge orders it transcribed. Preserve your notes because the judge may later direct that the sidebar be made part of the record or sealed. For the 2:10 p.m. conference, the judge expressly said, 'This is off the record,' so mark it as an off-record bench conference: '(Whereupon, an off-the-record bench conference was held at 2:10 p.m.)' and do not transcribe the scheduling discussion. If the judge later puts the scheduling agreement on the record, transcribe that on-record statement. The key is to follow the court's direction and to document the existence and timing of the conference without disclosing content the court has excluded.
2. What is the reporter's role in the sealing request, and what should you do while the motion is pending?
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The reporter does not decide whether to seal. Sealing is a judicial determination based on the parties' arguments, the public's right of access, and any applicable statute or rule. Your role is to preserve the record and follow the court's written order. While the request is pending, do not release the sidebar transcript or any copy of it to defense counsel, the prosecutor, the media, or anyone else. Prepare the transcript as directed, but keep the sidebar portion segregated so it can be sealed without altering the rest of the record. If the judge asks you to submit the sidebar transcript for in camera review, do so through the court, not informally. Once a written sealing order is entered, follow the court's procedures: use a sealed envelope or restricted electronic access, log who reviewed it, and note the order date and docket number on the transcript cover or a separate index. If anyone requests the sealed portion, refer the request to the court.
3. What should appear on the transcript cover and certificate regarding the sealing issue and the off-record conferences?
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The cover should identify the case caption, index number, court, part, judge, date, volume, and the type of proceeding. If a sealing order has been entered, the cover or a prominent notice should state that a portion of the transcript is sealed by order of the court, with the date of the order and the judge's name. Do not describe the sealed content in the public cover. The certificate should be the standard reporter's certification that the transcript is a true and accurate record of the proceedings, but it should not falsely imply that the entire transcript is publicly available if part is sealed. Use a separate sealed-volume cover or an index entry such as 'Sealed sidebar transcript, 11:47 a.m., filed under seal pursuant to order dated ___.' For the 2:10 p.m. off-record conference, include the standard notation in the body and do not certify that the off-record discussion was transcribed. Before filing, verify that the judge's written order matches what you are sealing; if there is any ambiguity, ask the court rather than guessing.