Section 6.19 Recording a Preliminary Hearing: The Right to a Transcript

• Library: Criminal Practice 2012 Supp

VIII. (§6.19) Recording a Preliminary Hearing: The Right to a Transcript

There is no constitutional requirement that a verbatim record and transcript be made of the testimony at a preliminary hearing. State v. Eaton, 504 S.W.2d 12 (Mo. 1973). In fact, a defendant’s substantive rights are not affected by a preliminary hearing, and a preliminary hearing is not even a part of the constitutional right to due process. State v. Menteer, 845 S.W.2d 581 (Mo. App. E.D. 1992). The only exception to the requirement of a verbatim record, mentioned in §6.8 above, is in the case of a homicide, and that is in accordance with Rule 22.10 and § 544.370, RSMo 2000. State v. Clark, 546 S.W.2d 455 (Mo. App. W.D. 1976). In these cases, the verbatim record can be transcribed at the request of either party. In all other cases, there is no requirement that a record and transcript be prepared, but a record and transcript may be made of the hearing at the expense of the accused, if not prohibited by local court rule and the parties agree to (1) the method and verification of accuracy and (2) equal access to the transcript. Absent this agreement beforehand, counsel invites objection.

Most courts will permit counsel to tape record the preliminary hearing; counsel would be wise, however, to check with the local rules of each court in advance of the preliminary hearing. To determine whether a certified court reporter will have to be supplied by the defendant or a tape or digital recorder will instead suffice, counsel should speak to the prosecutor before the hearing. Although more expensive, a certified court reporter is preferable to an amateur tape-recorded effort of marginal quality.

No matter how testimony is recorded, counsel should remember that any record or transcript must be provided to the prosecutor under the rules of discovery. Rule 25.05. If the preliminary hearing was electronically recorded and the recording is not transcribed, counsel must make the recording available to the prosecution to listen to or copy. Likewise, if the prosecution obtains a record of the hearing, it must be provided to defense counsel under the discovery provisions of Rule 25.03. Again, a preliminary hearing transcript is useful as impeachment evidence at trial if a witness’s testimony differs from that given at the preliminary hearing. Additionally, there is the possibility that the testimony of a witness at a preliminary hearing might be used as evidence in a trial if the witness becomes...