Primacy of Paratextual Transcripts

Where both a printed trial transcript and a trial paratext exist, which is the primary legal text for purposes of appeal? Given our society's bias toward print as the proper medium for recording the law, our initial response will likely regard the paratext as supplemental. But why should this be so? After all, with respect to the entire trial proceedings, the paratext is the relatively more comprehensive record. ¹⁵⁶ Like other printed works, the trial transcript enframes the trial experience so as to exclude a measure of electronically recorded reality. For example, it excludes the demeanor of the judge, attorneys, witnesses, and jurors (subtleties such as gestures, emphasis, anger, or evasiveness), as well as the sensory impact of the trial process on the trier­of­fact, all of which are represented in the paratext. Additionally, a printed account of an event may harbor substantive inaccuracies. As federal judge Irving Kaufman succinctly put it: "[T]here remain some truths too ephemeral to be captured in the cold pages of a court transcript ...." ¹⁵⁷ Even on the "literal level," the paratext is probably the more reliable account. It can easily expose any inaccuracies in or liberties taken in the stenographic record, because the paratext relies on the limited intervention of the camera operator, rather than on the shortcomings of a court reporter. ¹⁵⁸

The following illustration demonstrates the primacy of paratexts. Imagine a prosecution in a capital case of a non­English­speaking indigent defendant. A court­appointed expert translates the entire oral exchange among the accused, the state's attorney, and the judge. Both stenographic and audio­ visual records of the proceeding exist. Appealing the death penalty sentence, the defendant insists that the expert innaccurately translated certain significant portions of testimony. The defendant further argues that the stenographic account, faithful to the faulty translations, only compounds the prejudicial error. The defendant substantiates this claim with credible evidence from other translators who rely on the paratext.

In such a case, what is or should be the primary text? Even elementary notions of due process would seem to dictate that the printed transcript should yield to its electronic counterpart. Prior to the advent of various electronic recordings, however, such a life­sustaining claim would have been much less likely. ¹⁵⁹ Yet this hypothetical indicates the possibility that significant events in the trial history may find little or no expression in print.

While critics may vigorously object to the idea of reviewing paratexts, ¹⁶⁰ they cannot deny their primacy in cases in which the printed text and the paratext may conflict. Taking this view, many courts in Kentucky treat the videotape trial account as the sole and official record for appellate review in all cases. ¹⁶¹ The State claims three advantages to this method: reduced costs, reduced delay, and improved quality of justice. ¹⁶² Now that paratexts have breached the confines of the printed trial transcript, there is no serious likelihood that their potential will long remain untapped. ¹⁶³ The future lies with Kentucky. ¹⁶⁴