State v. Yough, 208 N.J. 385 (2011). The main focus of this opinion by Justice Albin was whether the Law Division abused its discretion in declining to grant a mistrial when a key witness gave different testimony than expected. By a 5-0 vote, the Court held that there was no abuse of discretion.
A subsidiary issue that arose, however, involved a challenge by the State to the accuracy of the trial transcript. Justice Albin found that, with the Court having listened to the portion of the sound-recorded proceedings at issue, “there may be some basis to the State’s challenge.” But “any such challenge to the accuracy of the trial record should have been brought before the trial court or the Clerk of the Appellate Division.”
Rule 2:5-5(a) was the basis for the Court’s ruling on this issue. That Rule provides that “[a] party who questions whether the record fully and truly discloses what occurred in the court or agency below shall … apply on motion to that court or agency to settle the record.” This is because, as Justice Albin stated, “[t]he trial court is clearly in the best position to settle the record,” having been present for the events memorialized in that record. Alternatively, Rule 2:5-5(a) allows a party to an appeal to “request the clerk of the court in which the appeal is pending to review the tape thereof to determine whether a particular portion of the transcript accurately transcribed what was said by a participant.”
Having noted the proper ways to settle the record, the Court concluded that the issue raised by the State would not have altered the outcome of the case even if the transcript were not accurate. This portion of the opinion is a useful reminder that the Court Rules provide multiple mechanisms for ensuring the accuracy of the record, mechanisms that are not often mentioned in judicial opinions, and that parties need to avail themselves of those remedies promptly if they believe that the record requires correction.