Electronic recordings presented or offered into evidence

(Subd (a) adopted effective July 1, 2011.)

(Subd (b) amended and relettered effective July 1, 2011; adopted as part of unlettered subd effective July 1, 1988; amended and lettered as subd (a) effective January 1, 2003.)

(Subd (c) amended and relettered effective July 1, 2011; adopted as part of unlettered subd effective July 1, 1988; amended and lettered as subd (a) effective January 1, 2003.)

(Subd (d) amended and relettered effective July 1, 2011; adopted as part of unlettered subd. effective July 1, 1988; amended and lettered as subd. (b) effective January 1, 2003.)

Rule 2.1040 amended effective July 1, 2011; adopted as rule 203.5 effective July 1, 1988; previously amended effective January 1, 1997; previously amended and renumbered as rule 243.9 effective January 1, 2003, and as rule 2.1040 effective January 1, 2007.

This rule is designed to ensure that, in the event of an appeal, there is an appropriate record of any electronic sound or sound-and-video recording that was presented or offered into evidence in the trial court. The rules on felony, misdemeanor, and infraction appeals require that any transcript provided by a party under this rule be included in the clerk's transcript on appeal (see rules 8.320, 8.861, and 8.912). In civil appeals, the parties may designate such a transcript for inclusion in the clerk's transcript (see rules 8.122(b) and 8.832(a)). The transcripts required under this rule may also assist the court or jurors during the trial court proceedings. For this purpose, it may be helpful for the trial court to request that the party offering an electronic recording provide additional copies of such transcripts for jurors to follow while the recording is played.

Subdivision (a). Note that, under Code of Civil Procedure section 2025.510(g), if the testimony at a deposition is recorded both stenographically and by audio or video technology, the stenographic transcript is the official record of that testimony for the purpose of the trial and any subsequent hearing or appeal.

Subdivision (a)(2). The party offering or presenting the electronic recording may serve and file a copy of the cover and of the relevant pages of the deposition or other transcript; a new transcript need not be prepared.

Subdivision (b). Note that, with the exception of recordings covered by Code of Civil Procedure section 2025.510(g), the recording itself, not the transcript, is the evidence that was offered or presented (see People v. Sims (1993) 5 Cal.4th 405, 448). Sometimes, a party may present or offer into evidence only a portion of a longer electronic recording. In such circumstances, the transcript provided to the court and opposing parties should contain only a transcription of those portions of the electronic recording that are actually presented or offered into evidence. If a party believes that a transcript provided under this subdivision is inaccurate, the party can raise an objection in the trial court.

Subdivision (b)(3)(C). Good cause to waive the requirement for a transcript may include such factors as (1) the party presenting or offering the electronic recording into evidence lacks the capacity to prepare a transcript or (2) the electronic recording is of such poor quality that preparing a useful transcript is not feasible.

Subdivision (c). The requirement to file a transcript provided to the court under (a)(2) or (b)(1) is intended to ensure that the transcript is available for inclusion in a clerk's transcript in the event of an appeal.

Subdivision (d). In some circumstances it may be helpful to have the court reporter take down the content of an electronic recording. For example, when short portions of a sound or sound-and-video recording of deposition or other testimony are played to impeach statements made by a witness on the stand, the best way to create a useful record of the proceedings may be for the court reporter to take down the portions of recorded testimony that are interspersed with the live testimony.