220.1Recording Trial Proceedings
Key Concepts
- Recording requirements are set by statute. They generally require recording of all superior court trial proceedings, but only require recording of specified proceedings in district and juvenile court.
- Matters occurring off the record, such as bench conferences, should be “reconstructed” for the record by the judge to aid in review on appeal.
General Recording Requirements
1. Superior Court Proceedings
Pursuant to G.S. 15A-1241, all superior court criminal trial proceedings must be recorded by a court reporter. See State v. Yates, 262 N.C. App. 139 (2018) (new trial required where equipment malfunction interfered with recording full trial, including relevant portions of victim's testimony, preventing proper review on appeal). The only exceptions are:
a. Jury selection in non-capital cases;
b. Opening and closing statements to the jury; and,
c. Arguments of counsel on questions of law.
These three categories do not ordinarily have to be recorded; however, if either party (or the judge) requests that categories (a) and (b) be recorded (known as a “motion for complete recordation”), then categories (a) and (b) must also be recorded. See G.S. 15A-1241. Such a request or motion must be made before the commencement of any arguments, and if one argument is recorded then they all must be. Additionally, if there is an objection during attorney arguments on the grounds of “improper argument,” and the arguments were not being recorded up to that point, the court in its discretion may order that the remainder of the argument be recorded. G.S. 15A-1241(b).
2. District Court Proceedings
The only statutory recording requirement for criminal proceedings in district court is found in G.S. 7A-191.1, which dictates that a district court judge must require that a true, complete, and accurate record be made of the proceeding in which a defendant pleads guilty or no contest to a Class H or Class I felony under G.S. 7A-272.
3. Juvenile Court Proceedings
Under the juvenile code, G.S. 7B-2410 requires recording of: (i) all adjudicatory and dispositional hearings; and (ii) all hearings on probable cause and transfer to superior court. The recording may be by stenographic notes or by electronic or mechanical means. Records must be reduced to a written transcript only when timely notice of appeal has been given. The court may order that other hearings also be recorded, if it so chooses.
Bench Conferences
The North Carolina Supreme Court ruled in State v. Cummings, 332 N.C. 487 (1992), that G.S. 15A-1241 does not mandate the recording of private bench conferences in superior court between a trial judge, prosecutor, and defense counsel. If, however, either party requests that the subject matter of a private bench conference be recorded for possible appellate review, the trial judge must “reconstruct” the matters discussed as accurately as possible for the record. See also State v. Mackey, 287 N.C. App. 1 (2022) (no error in failing to record bench conferences when defendant requested only recordation of voir dire of expert witness).
Alternatively, the trial judge may instruct the court reporter in advance to record any private bench conferences. In State v. Buchanan, 330 N.C. 202 (1991), the state Supreme Court ruled that a defendant’s nonwaivable constitutional right to be present at a capital trial under the state constitution was not violated when: (1) the defendant was physically present in the courtroom, and (2) the defendant was represented at the bench conference by his or her attorney. However, that right may be violated if the subject matter of the bench conference implicates the defendant’s confrontation rights or the defendant’s presence would have had a reasonably substantial relation to the opportunity to defend himself or herself.
Non-verbal occurrences
When a significant non-verbal event occurs at trial, the prosecutor should ask to have the record reflect the event. For example, if a distraught victim is only able to point to the defendant to identify him as the assailant, the prosecutor should state for the record (or ask the judge to so note) that the victim has answered the question and identified the defendant by pointing at him. Additionally, attorneys must always refrain from any improper or offensive conduct in the courtroom, and this includes unspoken acts or gestures. See, e.g., State v. Golphin, 352 N.C. 364 (2000) (to be able to raise the issue on appeal, trial attorneys should have asked to have the record reflect that the prosecutor pointed a gun at a juror during closing arguments).
Recordation or Reconstruction for Appellate Review
If a trial judge violates a defendant’s constitutional right to be present (for example, by talking to prospective jurors and excusing them during a capital trial without the defendant being present), recordation of the contents of the conversations will assist the court in determining whether any alleged constitutional violation or other error was harmless beyond a reasonable doubt. See State v. Payne, 328 N.C. 377 (1991) (finding defendant’s absence was harmless error where defense counsel and court reporter were present, and transcript allowed appellate court to review judge’s questions to jurors); State v. Allen, 323 N.C. 208 (1988) (similar holding, finding harmless error where transcript revealed defendant’s presence would not have made any difference).
As noted above, if the conversation was not recorded, the trial judge may “reconstruct” the conversation so that the appellate court can conduct a harmless error analysis. See State v. Davis, 325 N.C. 607 (1989); State v. Hudson, 331 N.C. 122 (1992); see also State v. Foster, 236 N.C. App. 607 (2014) (it was error for court not to reconstruct the substance of several bench conferences held off the record, although the error was deemed harmless in this case). However, an appellate court will not accept a trial judge’s reconstruction done years after the trial. State v. McCarver, 329 N.C. 259 (1991).
