The Digital Courtroom

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Photo by Luis Perez via Flickr

Photo by Luis Perez via Flickr

In 2003, a special study committee formed by the Massachusetts Supreme Judicial Court to evaluate the timeliness and accuracy of trial transcripts, found that transcript delays represented the “single greatest impediment to the progress of cases appealed from the Massachusetts trial courts.”

13 years and several rounds of court reforms later, “not much” has changed, according to Murray Kohn, Senior Staff Counsel for the Committee for Public Counsel Services in Massachusetts.

“I just got done talking to one guy who waited two years for a transcript—in prison,” Kohn told The Crime Report.

Kohn, an expert in transcript production and record assembly, says delays in transcripts produced by an increasingly burdened group of Massachusetts court reporters—who now only number 38, and cover 75 courtrooms in the Superior Courts—have contributed to the problem.

An equally troubling issue: The growing number of transcripts prepared from digital recordings have major gaps in the record. Sometimes, they are lost entirely, and efforts to reconstruct the record cause more untoward delays, which usually wind up favoring the prosecution.

“Once you’ve got missing or incomplete transcripts, you might as well kiss your appeal goodbye,” says Kohn.

According to Kohn’s calculations, roughly one-third of indigent appellants in the state of Massachusetts are spending unnecessary time in prison, because their cases are prejudiced by delays related to to transcript problems.

Impact of the 2008 Financial Crisis

Courts first began to experiment with audio recordings in the 1970s (with the exception of Alaska, which never could attract court reporters and began using tape recorders in the 1960s).

The 2008 financial crisis had a significant impact on the use of technology in the courtrooms. Many states—such as Utah, New Hampshire, and New Jersey—increasingly began to rely on recording systems in the face of severe budget shortfalls. By 2010, at least 46 states had begun employing some form of electronic recording.

Meanwhile, the number of full-time official court reporters has dwindled to under 9,000 nationwide. (The vast majority of court reporters, about 24,000, work part-time.) While there is no official information on the number of courtrooms nationwide that have switched to electronic recording, data collected by the American Association for Electronic Reporters and Transcribers (AAERT) shows that 85 percent of U.S. courtrooms have gone digital.

While the recession had courts scrambling to cut costs, states since the 1970s have also been trying to address notorious backlogs in the justice system caused by transcript delays. The Massachusetts Study Committee on Trial Transcripts urged reform because it found that “despite its critical position, the process of trial transcript preparation in Massachusetts does not meet the needs of the court system or its customers.”

Indiana launched an audio recording pilot program in 2012, not to cut costs, according to the state court administration, but to speed up the delivery of transcripts for appeals.

The transition to audio recording across the states has been troubled and contentious, raising the ire of court reporters and provoking a fierce battle between audio technology vendors, transcriptionists and unions.

Lobby groups for court reporters are active on the state and federal levels. The National Court Reporters Association (NCRA) has a Political Action Committee devoted to cultivating relationships on Capitol Hill and electing “friends” of the NCRA to congress. Professional court reporters’ associations in California, Florida and Texas, among others, have successfully lobbied to keep electronic recording out with limited exceptions.

The California group sued  the state court administration in a 1995 case that went all the way to the California Supreme Court. (Half of all court reporters work in four states: California, Texas, New York and Illinois.)

But California began laying off court reporters anyway, resulting in many hearings and trials with no record at all, above all affecting poor people in family courts. Several subsequent bills proposing to allow electronic recording when a court reporter is not available have been shot down amid strenuous opposition from court reporter associations and unions.

‘It’s Not the Technology’

A number of factors undermined the use of audio recording technology in Massachusetts: When the administration installed digital recording systems in all but the superior courts, it ignored over a decade of recommendations from the Study Committee, the National Center for State Courts, and the Conference of State Court Administrators. One key recommendation was that courts hire personnel (known as “courtroom monitors”) to operate the recording equipment during trials.

As a result, important sidebar discussions and other testimony critical for appeals were not recorded. Sometimes, says Kohn, the court clerk simply forgot to press the record button.

The result: The appeals process is still burdened with delays from the shrinking number of court reporters in the Superior Courts, as well as with incomplete or missing transcripts from the district and municipal courts.

After the Study Committee on Trial Transcripts Report came out in 2003 (aka the ‘Green Report’), Massachusetts installed a digital recording system (JAVS) to replace legacy four-track cassette recorders in the lower courts. Facing growing complaints over the years, the court administration in 2015 decided once again to update the recording system, this time to include the Superior Courts as well, and awarded the contract to the company For The Record (FTR), a global firm that has offices in Colorado, Australia and the United Kingdom.

Steve Townsend, Vice President of the American Association of Electronic Reporters and Transcribers and former CEO of For he Record, believes criticism of technology is misplaced, saying that “misconceptions about electronic recording are based on a judge’s or attorney’s experience with unmanaged implementations of the technology.”

“It is not about the technology,” he added. “It is all about the management.”

Now, the remaining 38 official court reporters expect to be laid off come January after a “test period” with the new equipment. But the court administration only plans on creating 16 court monitor positions for the state of Massachusetts.

“They know that the JAVS system was inadequate, it wasn’t producing adequate recordings,” said Kohn. “And now they’re hoping that the FTR system will—but without monitors, it’s never going to work.”

Townsend agreed, noting that “courts save a lot each year if they can remove a person from the courtroom and replace that function with an unmonitored recorder. But now that DAR is becoming more commonly used in higher level matters (e.g. jury trials), this really is an unacceptable strategy.”

“The courts may still be saving money, but they are placing an unreasonable burden on the attorneys and the attorneys’ clients by failing to provide an adequate record,” Townsend told The Crime Report.

Even court reporters, facing the elimination of their profession, insist on the need for these monitors– for “someone with a brain” to manage the equipment.

“It doesn’t work by itself,” noted Nancy McCann of the Massachusetts Court Reporters Association (MCRA).

When it comes to producing accurate records for appeal, technology didn’t get a fair shot. Now, the Massachusetts Bar Association is clamoring for the return of court reporters— despite the unresolved, “unconscionable” transcript delays detailed in the Green Report, which found that “Massachusetts ranks among the worst states we found in our review of practices across the nation.”

Does Digital Save Money?

Most states have reported significant savings by employing digital recording in the courts. In 2012, Utah claimed to have saved over $1.3 million by eliminating 50 court reporter positions and switching to audio recording in 2009. In 2011, the California Legislative Office estimated that the state could save $113 million annually by switching to audio recording (a figure that the National Court Reporters’ Association vehemently disputed).

But calculating the true cost of one system versus the other over time is more complicated than comparing court reporter salaries to electronic hardware, as court administrators are prone to doing. A 2015 audit of Australia’s digital court systems shows that savings were only half of what the Department of Justice and Attorney General had estimated. With audio recordings, a transcript must still be produced and paid for.

Add to that the hidden costs of mistakes and delays, and the comparison is more uncertain: What does it cost for states to house prisoners that are waiting for their trial transcripts for months, years? What does it cost to reconstruct a transcript when a recording fails?

While industry professionals have been most vocal in the debate about how the record should be made, the extinction of a traditional profession probably matters less than the threat to an individual’s  right to appeal. Neither the traditional stenographer nor unmanned technology has solved the systematic problems in Massachusetts courts described over a decade ago in the Green Report.

“There’s the psychological affect— the uncertainty of not knowing what’s going on with your case, not knowing what’s going on with the system, not being able to understand what’s taking so long.” said Kohn. “And most importantly, if [the client] wins the appeal, he’s spent time in jail that he shouldn’t have spent. Because his conviction was overturned.”

Besides losing time in prison, a defendant can also find his case prejudiced by a delay: If retried, exculpatory evidence might have disappeared, witnessed died, and leads gone cold.

Kohn says at least five attorneys contact him each week seeking help with dire transcript problems— an average of 240 a year. Assuming these are separate cases, that’s around one third of the annual indigent caseload of Massachusetts’ Committee for Public Counsel Services (CPCS).

According to Kohn, the majority of attorneys he sees still deal with transcript delays of over 120 days.

William Smith, a Massachusetts public defender who largely handles murder cases, says that the 120-day deadline for transcripts, which was adopted in 2009, “has no teeth in it whatsoever.”

Smith, who started a listserv for criminal appellate lawyers, says that a two-year wait for transcripts from court reporters is not  uncommon. Based on the comments in his forum, a large percentage of cases are stalled over four months due only to transcript production.

Delays aside, both attorneys say that transcripts produced by a court reporter are superior to those made from audio recordings. To appeal, you must prove that an error was made during the trial.

Sidebars Get Lost

The problem caused by missing “sidebar” conversations cannot be understated.

“If the attorneys and the judge have to discuss a legal matter away from the hearing of the jury, they go to the side of the bench away from the jury and they whisper,” said Kohn. “This is one of the most important events in an appellate process, because this is where the judge’s error is going to occur…and they don’t get recorded. And so [attorneys] get transcripts with these blanks in them.”

David Skeels, an attorney in the CPCS Appeals Unit, added that these sidebar discussions are “often of crucial importance on appeal because objections to evidence are often made outside the jury’s presence—the judge will often want to know outside the jury’s presence what the evidence would be if admitted.”

Efforts to reconstruct the record cause even more delay, and are usually biased toward the prosecution because both the Commonwealth of Massachussetts and the judge both have an interest in “cleaning up” the record to produce an error-free trial.

“The Commonwealth simply doesn’t respond; it drags its feet,” said Kohn. “You send them an affidavit saying ‘here’s what we think happened in the missing portions, please let me know whether you’ll stipulate to that.’ Nothing. They don’t get back to you. They don’t bother.

“They have no interest in doing it. They’ve gotten their conviction, and any cooperation they provide is only going to move the appeal forward, which they don’t have an interest in doing.”

According to Fred Lederer, director of the Center for Legal and Court Technology, created by  the Marshall-Wythe Law School at the College of William & Mary and the National Center for State Courts. “For The Record’s latest system has “an exemplary technical solution for sidebars.”

Now, Lederer explained, a judge will be able to mute the system’s amplification without turning off the recording. But because the system is still so new, transcripts from these recordings have yet to reach the Massachusetts appellate courts.

Left Hand, Right Hand

In Massachusetts, the story that emerges is less one of humans pitted against machines, but of a justice system working against itself—a poor interface between the trial courts and the appeals court.

While it is the trial court’s’ responsibility to preserve the record and to produce transcripts, its first concern is handling new cases as they come in, with little reason to prioritize a case that’s already been “disposed of.” The trial court has no vested interest in timeliness or accuracy of the transcript.

Harry Spence, Court Administrator of the Massachusetts Trial Courts, approved the decision to install FTR systems in all Massachusetts courtrooms, and also oversees the hiring of courtroom monitors. Ultimately, he will make the decision whether to dismiss the remaining court reporters next January.

Spence, who admits he is no expert in digital audio recording technology, touted improvements of the new system, such as the ability to “index” a record as it is being made, and the fact that it is instantly uploaded to a server, cutting out redundant intermediary steps. However, he appeared genuinely surprised to learn that appellate attorneys wanted the missing sidebar conversations.

“I think that there is a lack of understanding of the need to have an absolutely meticulous record in these cases,” said  Smith. “It really has made a difference in hundreds and hundreds of cases over the years, no doubt about it.”

The Power of Tradition

One challenge that technology faces in the courts is the highly human-centered, traditional nature of the American legal system, which loathes change. Trials, which are the heart of the process, haven’t changed much in 300 years.

“If Thomas Jefferson were to come back to the modern world, he’d be perfectly comfortable in most Virginia courts,” says Lederer.

Many judges and trial attorneys have a good rapport with court reporters, who have accumulated an intimate knowledge of individual justices, lawyers, and also understand legal terms of art that freelance transcriptionists get wrong. Judges often develop long-standing relationships with their court reporters, who at times seem to acquire the status of personal staff members.

While it varies from state to state,  the decision whether or not for a courtroom to go digital can often hinge on this relationship, says Lederer, who provides technical consulting to courtrooms across the country.

A 2009 policy paper issued by the Conference of State Court Administrators recommended the use of audio technology, but recognized that it would require a “significant cultural change,” warning that “the shift to digital recording in courtrooms can cause anxiety among judges, court reporters, staff, and attorneys.”

In Massachusetts, a bad experience with unmanned technology is turning some people back to a system that they’ve relied on for hundreds of years, despite the “plague” of problems associated with it. The Hampden County Bar Association published a statement in February opposing the imminent layoffs of court reporters, and a Massachusetts Court Reporters Association petition to save jobs has gained nearly 700 signatures, among them criminal trial lawyers and appellate defenders.

Based on comments from those who support keeping court reporters, there seems to be  an unsubstantiated belief that human beings can remember and record events more accurately. That doesn’t seem unusual in the context of a justice system that depends on humans to make a decision based on what they see and hear in a courtroom—and perhaps somewhere behind the threat to jobs, technology poses an uncomfortable challenge to the trial system.

Too Hot to Handle

Massachusetts is not the only state burdened with transcript problems, from delays to missing records caused by both court reporters and recording failures.

In Washington state, for example, a bank robbery case was delayed four years due to transcript issues. Similar problems have surfaced in California, and in Iowa.

In New York, missing transcripts might not be the primary cause for delays on appeal, but many public defenders attest to the glacial progress of record requests as their clients wait in prison.

According to Jed Tifft, a paralegal at Appellate Advocates, at least 40 percent of the 50-70 transcript requests he handles at any given time take over three months, and several take over six months. Additionally, the agency hires at least one full-time ‘screener’ to flag the transcripts for missing pages, a not uncommon occurrence that can have disastrous consequences.

While attorneys may file a legal motion to produce the transcripts, it usually comes down to a personal “nudging” campaign, requiring frequent calls to the court reporter.

Throughout the country, two things are clear: First, as important as the official record is to the justice system, there is no government or independent entity tracking the states-wide problem of delivering accurate and timely transcripts; nor has there been adequate follow-up evaluations of the new systems.

Second, due to sensitive labor relations, the issue is simply too hot to touch. All three indigent appellate agencies in New York, who are dependent on the goodwill of court reporters to provide the best possible representation they can for their clients, declined to participate in this story.

The National Center for State Courts, which authored Making the Record: Utilizing Electronic Digital Recording in 2013, also declined comment—explaining that record production was simply “too political.”

Victoria McKenzie

Victoria Mckenzie

Perhaps they learned from NCSC’s William E.Hewitt, quoted in the May 1993 issue of the ABA Journal:

“Anyone that puts words down on paper or utters them in public that state or imply approval of any way of making the record that is not short-hand based will be subject to systematic attacks by the NCRA.”

Victoria Mckenzie is a freelance writer based in New York and Medellín. She welcomes readers’ comments.

3 thoughts on “The Digital Courtroom

  1. Pingback: Massachusetts highlights changes in courtroom recordkeeping

  2. I found this article this morning thanks to the NCRA’s website, buried deep in the under the tab of News and Government.

    It is rich in content, a real eye opener for Court Administrators, Judges, Lawyers, especially appellate lawyers, and for everyone who is affected by delays in the production of transcripts typed up by – yes – court reporters – and PC keyboard typists, occasionally by mismanagement of those who supervise operations of digital equipment – and more dumb excuses – there are plenty of contact names in his Crime Report to whom I will be contacting – individually, addressing the issue that ASR Transcriptor will play a significant part in eliminating delays of courtroom trial transcripts and possibly reducing the cost for an original final certified transcript by at least 50%.

    For instance, instead of prisoners languishing in jail for six months more than they have to awaiting production to even start, and another 120 days to get a copy of their transcript, or an indigent mother of three kids waiting over 90 days to get her transcript on a ruling of a short hearing, what if ASR worked with outstanding DAR recorded voices of the courtroom, including side bars when lawyers and the judges finally play it smart and usher the jury into the jury room so they can speak freely in the courtroom, or they all wear HQ wireless digital mics at side bar so their whispers are at least recorded 100%, and if ASR cannot get it, for those very precious few minutes, at least a common typist can type up every word of that side bar and justice will be serve on a very timely basis and then integrate those side bars in the main transcript provided by ASR Transcriptor.

    So I am over the next few days will be drafting emails for the consumption by all the names referred to in this article and explain to them just how efficient and reliable is ASR Transcriptor today (they will see examples) providing same day working rough drafts, sync’d to TrialDirector, a service provided at a fraction of the cost that the administration of justice pays today and all those court reporters who were fired or permanently laid off, for those who always also edited their own trial notes using their CAT systems will be able to stay in the loop still editing.

    Let’s take a look at our first demo. A recent Speech by Chief Justice Tani Cantil-Sakauye of the California Supreme Court

    But if no court reporter wants to or no out-of-work CAT scopists want to stay employed, there are plenty of offshore companies willing to work for less.

    In that regard, let me tell you that we have found them and they are good.

    Next demo of ASR in action. Federal Court – San Francisco – Jewel vs. the NSA

    They take our RTF, rich text format output, load into Word or WordPerfect, load the HQ MP3 into ExpressScribe, and add Q. and A. and SPEAKER IDs, punctuation, swap out bloopers for the correct word or phrase, then proofread, all within 12 hours, ready for AMVSR, LLC to furnish a daily copy transcript early next morning directly into the email boxes of all those participating in that trial – and beyond – do it for 50% less, imagine some day a prisoner is also getting his copy at the same time within 12 hours of adjourning each day, or AMVSR, LLC superfast can transcript five days of a trial within 12 hours providing a working rough draft, sync’d to TrialDirector, for just $1.00 per recorded minute, enabling the parties to stipulated to only sections of the transcript that they really need for the appeal, because now they have the ability, never ever presented to them before, to see the transcript first, work out issues, and only order those parts to be finalized and certified saving their clients and each state’s yearly budget on transcription which no doubt is in the millions every year!

    Third Convincing ASR demo. United States Congress

    So read this article and know when 5G technology has finally arrived, streaming courtroom trials directly to ASR Transcriptor will be done very easily and cheaply, so realtime streaming ASR transcripts will be delivered to everyone who wants a copy of the living transcript, and the prisoners who are waiting for their transcript, or the indigent plaintiff in a civil case, will not have to wait a day longer than absolutely necessary.

    The United States Surface Transportation Board

    Fiually, for now learn from those who know.
    Federal Communications Commission Meeting July 14, 2016
    Subject 5G – Coming Soon

    Steve Hubbard
    President & CEO
    21st Century Automated Transcription
    For Courts and Depositions

  3. Unfortunately, court administrators and owners of digital recording equipment companies don’t want to tell you that certified court reporters ARE the most accurate, on time, and economic means of providing the record. And certified court reporters are too busy capturing the record and keeping up with transcript demand to rebut glossy but factually incorrect and criminally deficient marketing material. The best digital recording equipment captures sound that it hears, period — IF it is working correctly and IF someone remembers to turn it on. It doesn’t differentiate between an answer and a sneeze. It doesn’t differentiate between Attorneys A, B, C or a witness. Whether you’ve spent thousands of dollars preparing your case or walked in unprepared pro se, that recording equipment is only as good as the background noise. And no “monitor” is listening as a court reporter does to make sure every word is captured and every mumbled answer is clarified. Because, unlike that audio CD they hand you at the end of the day, a certified court reporter produces an accurate and fully-contained transcript of the proceedings in a TIMELY fashion that can and is used for appeal purposes. And that dependable certified court reporter works very hard, both during the proceedings and after everyone else goes home, to produce that accurate transcript and deserves to be paid the reasonable fees that they have been working under for decades. Not to spend it on flashy brochures to make investors happy. Just to make a decent and hardworking living at a profession they respect, support, and uphold.

    Your private conversations aren’t going to be played back in digital recording company’s offices for amusement. With a certified court reporter, you don’t have to worry about your private conversations being recorded in the first place.

    Judges and attorneys, before your court administrator begins installing expensive wiring to support hardware and software that constantly needs serviced and constantly needs upgraded and that has no means of producing a transcript, get involved. Court reporters aren’t running million-dollar companies that wine and dine court administrators so they will install their product. Don’t sell your county short by allowing hundreds of thousands of dollars to be spent on equipment that can’t give you what you need, only what you will be forced to live with. Pay attention when your local court administrator stops hiring as well as cuts the page rates of your certified court reporters. Not only are they intentionally driving court reporters away from their chosen profession, they are causing local court reporting schools to close because of the deliberate loss of jobs.

    In this day and age court administration has all the power and authority in our courts, and they don’t care whether a side bar is of record. They’re too busy planning their next conference in another vacation destination to discuss how to make their self-proclamation of “Not enough court reporters” come true. And when the trial is over, they have their own private karaoke courtroom.

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