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Tuesday, April 03, 2007

Courts - Can a digital CD take the place of a trial transcript? Can a "transcriptionist" take the place of a court reporter?

Those were the issues in Florida last month, where the District Court of Appeal for the 2nd District considered a Petition for Writ of Mandamus to the Circuit Courts for Polk and Sarasota Counties, "seeking relief to address certain electronic court recording and transcription issues." From the 13-page Per Curiam denial of the petition (including a 7-page concurring opinion):

The problems discussed in this petition arise from two significant changes in trial court case management: (1) the shift away from using trained professional court reporters in all courtroom proceedings to the use of less costly digital recording and transcription and (2) the shift in the funding of indigent cases from local government to the state under revision 7 to article V of the Florida Constitution, see Art. V, § 14, Fla. Const. Although these matters undoubtedly warrant attention and clarification, after considerable reflection we conclude that this court cannot resolve the problems discussed in the petition through the issuance of an extraordinary writ to any of the respondents. Accordingly, we deny the petition.
The panel gives an example:
The record included a transcript, but it contained significant errors. Among other errors, the transcript purported to include an appearance by an attorney on behalf of Ingram when no such attorney existed. The transcript was not based on the work of a court reporter, but on an electronic audio recording that had been transcribed by a "Tenth Judicial Circuit electronic court reporter" who certified that she was "authorized to transcribe the foregoing proceeding." It appears that the transcriptionist was confused and believed that Ingram was represented by counsel because there were two assistant state attorneys in attendance at the hearing.
In another example, "delinquency proceeding was not recorded by a court reporter; it was electronically recorded. When the public defender filed the standard request for a transcript from a court reporter, the Twelfth Judicial Circuit Digital Recording Office provided a compact disk (CD) to the public defender containing a digital audio recording from microphones inside the courtroom where L.A. was tried but did not provide a typed transcript. Ms. Conway, in a letter to an assistant public defender in James Marion Moorman's office, describes this CD as a 'CD transcript.'"

This is followed by a 7-page concurring opinion by Judge Altenbernd, who writes about the "real costs associated with any change in technology that deteriorates the quality of the record in courts of record." He continues:

I would specifically announce that a CD recording is not a transcript, and that, pursuant to the Florida Rules of Appellate Procedure, a transcript for purposes of appellate review must be transcribed by a court reporter. * * *

Court reporters, at least for these functions, are officers of the court. See Fla. R. Jud. Admin. 2.535(f). Moreover, by statute, the supreme court is required to establish minimum standards for court reporters. See § 25.383, Fla. Stat. (2005). It has no such obligation for any profession known as "transcriptionist." If we allow rule 2.535 to override the rules of appellate procedure in this respect, then we face a future in which criminal defendants, their family members, or others with interest in a case may seek to prepare and file the transcript that becomes an official part of the record on appeal. People who do not possess a high school diploma may prepare such a transcript. In a digital world, such transcriptionists may not even reside in Florida or in the western hemisphere. It may not be essential that the Florida Rules of Appellate Procedure have a valid and logical reason to require the use of court reporters for those rules to override rule 2.535(g)(3), but it is reassuring to understand the importance of using court reporters for all transcripts used in appellate proceedings.

As a result, although I concur with the majority that a writ of mandamus is inappropriate to address the compelling issues raised in this proceeding, I would take this opportunity to explain that a digital recording is not a transcript and that any transcript presented to this court in its review capacity must be prepared by an official court reporter.

If this sounds somewhat familiar, see this August 24, 2005 ILB entry, titled "Reports of Marion County court transcript work being done in Hong Kong."

[Thanks to Matt Conigliaro of the Florida law blog, Abstract Appeal, for highlighting the opinion.]

Posted by Marcia Oddi on April 3, 2007 04:44 PM
Posted to Courts in general