Preserving Legal Testimony: Court Reporters or Electronic Recording?
Q: What do court reporters do?
A: All court reporters provide an unbiased record of court proceedings. They are trained to take down testimony or to transcribe spoken words onto a paper or electronic record. This record helps to create a record of what is said in court, so that the case can be decided based on a text that can be reviewed.
Q: How are records of testimony made?
A: There are three methods of preserving testimony in depositions or at a trial: (1) a stenographic reporter may take down the words by pressing levers on a machine; (2) an attendant reporter may be present to oversee an electronic system (and sometimes a video camera) to record spoken words; or (3) an electronic recording may be made without direct human involvement or intervention. All three systems record the words of testimony, but vary in cost and usefulness. All criminal cases are attended by a court reporter, but a court reporter is required in civil hearings only if a party asks for one.
Q: Which system is most effective?
A: There is a continuing debate between those who believe that it is less costly and more efficient to have court proceedings electronically recorded and transcribed only when a transcript is requested by a party or the court, and those who believe that having a stenographic reporter present to take down the testimony is most effective. A stenographic reporter may mishear, misunderstand, or err in taking down the words, but an attended electronic system may crash or be unintelligible, despite backups. A purely electronic recording system with no direct human involvement may be cost effective, but is particularly prone to complete failures, risking the loss of any record at all. It is also prone to garbled or unintelligible words or sentences; a live court reporter can stop the proceeding and ask for the person to repeat what was said, but a recording device cannot. Where the record fails for any reason, there are procedures to allow the court to determine the relevant facts.
Q: What is the value of the human involvement of a stenographic reporter?
A: A stenographic court reporter takes down the proceedings as they are happening, making judgments about what should or should not be included in the record, as does an operator of an electronic system. Some conversations should not be recorded, such as a privileged attorney-client discussion or a discussion with a judge about whether certain information should appear in the record. Only a person present at the time can make those judgments. In addition, if two people speak at once or a speaker is difficult to understand, a reporter who is present can ask to stop the proceedings and ask for clarification, thereby providing a record that may be more accurate than an unattended electronic recording.
Q: What factors make electronic reporting attractive?
A: An electronic recording may more faithfully reflect the total courtroom experience, since the electronic recording includes voice tone, inflection, pauses in speech, and usually a video. Ohio Civil Rule 30(B)(3) permits depositions to be recorded by audio or videotape. Such recordings allow the transcript to be made, if necessary, but avoid much of the expense if not. They also allow simultaneous reading, watching and listening to the testimony, which cannot be accomplished with a stenographic record. Electronic reporting costs one-half to two-thirds of the cost of a stenographic record; because it has up to ten stereo tracks based on multiple microphones, it is often possible to decipher overlapping statements, which may be impossible for a stenographic reporter to take down. A professional engineer is not required for an electronic record; a notary public can record the proceedings.
Q: How might a court record be used after a trial is over?
A: Sometimes, a party to a case may believe an error in the trial has led to an incorrect outcome. In reviewing a case, the appellate court will read or listen to the relevant portions of the proceedings when its attention is drawn to the particular relevant words. Some courts will decide that listening to or watching the video is not sufficient, and will require that a written transcript be provided of any relevant testimony. Because of the importance of making decisions based on the best available evidence, a reliable recording system is very desirable, although court rules do allow parties to a lawsuit to substitute an agreed-upon statement of the evidence and proceedings if no record is available.
This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Ohio, Indiana and Kentucky attorney Paul G. Croushore, an author for Moore's Federal Practice.