Hearsay on the Record – When Transcripts Lose Their Voice

“I know you think you understand the words I said, but what you understand is not what I meant.”

That statement could be made in any courtroom in America. It captures the perennial problem of miscommunication. Words are slippery things—spoken in haste, accented by dialect, altered by noise, or even obscured by emotion. Now imagine taking that problem one step further: instead of a live human reporter preserving every syllable in the room, a recording is made, and later, someone who was never there attempts to produce a “transcript.”

The result is not the record of what was said. It is the record of what the transcriber thought they heard. And in the eyes of the law, that raises a thorny question: Is such a transcript, technically, hearsay?

What Is Hearsay, Really?

Under the Federal Rules of Evidence (Rule 801), hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted. It is excluded from evidence because it lacks the guarantees of reliability that come with direct testimony: oath, cross-examination, and the jury’s ability to observe demeanor.

Traditionally, transcripts made by certified court reporters avoid this problem because they are not hearsay. A court reporter, as an officer of the court, is present in the room, swears an oath, and produces a verbatim record under penalty of law. Their transcript is not a “statement” by them—it is the official record of the proceeding itself.

But what happens when the transcript is generated after the fact, by someone who was never present?

The Recording Paradox

A digital recording seems like a neutral piece of evidence. After all, it’s just a capture of sound. Yet recordings have limits. Microphones pick up side conversations, coughs, background noise, or nothing at all when a witness mumbles. Dialects, slang, and legal jargon can become garbled.

If a third party later listens to that recording and transcribes it, their choices inevitably shape the meaning. Did the witness say “he don’t got a gun” or “he done got a gun”? The difference could alter the course of a criminal case.

At that moment, the “transcript” becomes a second layer of interpretation—a human filtering of sound waves into text. It is not the proceeding itself; it is an outsider’s report of what they think happened inside. In other words, it starts to look very much like hearsay.

A Tale of Two Transcripts

Imagine two scenarios:

1. Official Court Reporter – A certified shorthand reporter is in the courtroom, taking down every word. When asked to read back testimony, the reporter can do so instantly. The transcript is later prepared, signed, and certified as the official record.
2. Remote Transcriber – No reporter is present. The proceeding is recorded. Weeks later, a transcriber, perhaps in another state or country, listens and produces a document. They never witnessed the proceeding, cannot resolve ambiguities, and cannot be questioned about context.

In the first case, the transcript is part of the court’s machinery of justice. In the second, the transcript is a derivative product of an out-of-court interpretation. If offered as evidence, it arguably meets every element of hearsay: it is a statement, made outside the courtroom, offered to prove what was said.

The Reliability Problem

Courts have long recognized that reliability is the linchpin of admissibility. This is why certified transcripts are accepted, but “rough drafts” or uncertified transcriptions are not. When the transcriber is a stranger to the proceeding, the reliability of their work depends on two fragile assumptions:

• That the recording captured everything accurately.
• That the transcriber interpreted it correctly.

Both assumptions are shaky. Recordings can fail, and even the best-trained ears can mishear. Unlike a live reporter, the transcriber cannot raise a hand in the moment and say, “Excuse me, could you repeat that?” They are locked into the limits of the audio.

The law does not look kindly on guesswork.

Judicial Views on the Matter

Several courts have already wrestled with the admissibility of transcripts created from recordings. The general rule: the recording itself may sometimes be admissible, but the transcript is not unless verified by someone with direct knowledge. For example, in United States v. Robinson (7th Cir. 1986), the court noted that transcripts of tape recordings are not evidence themselves—they are merely aids, unless authenticated.

Authentication requires someone with personal knowledge to testify that the transcript is accurate. But if no one with personal knowledge was present—because the transcriber was absent—who can authenticate? The transcript floats unmoored, legally speaking.

That leaves judges with two options: reject it outright, or treat it as hearsay requiring an exception. Neither inspires confidence.

Why the Distinction Matters

At first blush, this may seem like a technicality. After all, if the transcript is “close enough,” why not use it? But the stakes are enormous:

• In criminal law, one word misheard can mean the difference between acquittal and conviction.
• In civil law, a mis-transcribed contract term could swing millions of dollars.
• In family law, a garbled custody hearing could determine where a child lives.

The transcript is not a mere clerical convenience. It is the legal truth upon which appeals, rights, and freedoms rest. Allowing hearsay-like transcripts into the system corrodes the integrity of that truth.

The Ethical Dimension

There is also a profound ethical concern. Attorneys are bound by professional conduct rules to protect client interests. If they rely on a transcript that turns out to be inaccurate—or worse, inadmissible—they may be exposing their clients to harm and themselves to malpractice claims.

Meanwhile, judges depend on transcripts for appellate review. An inaccurate record could leave them vulnerable to reversal, undermining judicial efficiency and public trust.

The safest course—the only course, many argue—is to insist that the official record be made by a licensed professional present in the room. Anything less invites hearsay to masquerade as truth.

Technology’s Temptation

The rise of AI-driven transcription tools has only sharpened this dilemma. Proponents claim machine learning can transcribe speech quickly and cheaply. But AI is not a witness. It cannot swear an oath. It cannot clarify in real time. It cannot testify in court if challenged.

Every AI transcript must still be checked by a human. And if that human was not present, the same hearsay problem persists. The technology may change, but the legal principle does not: justice requires a reliable, authentic, firsthand record.

Back to the First Sentence

“I know you think you understand the words I said, but what you understand is not what I meant.”

This is the danger of building justice on transcripts from people who were never present. They may believe they have captured the words. But without the anchor of firsthand presence and professional certification, what they offer is an interpretation—an out-of-court statement about an in-court event.

And that, in the purest sense, is hearsay.

Conclusion

The transcript is the backbone of the legal system. It must be exact, reliable, and unimpeachable. When produced by those present, under oath, and with the skill to clarify in real time, it fulfills that role. When produced secondhand, from recordings alone, it slips into the gray zone of hearsay—unreliable, unauthenticated, and dangerous to justice.

Courts, attorneys, and policymakers must resist the lure of convenience and cost savings that erode accuracy. For without a faithful record, trials risk becoming little more than rumors written down.

And justice deserves better than hearsay on the record.

StenoImperium
Court Reporting. Unfiltered. Unafraid.

Disclaimer

“This article includes analysis and commentary based on observed events, public records, and legal statutes.”

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