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Thursday, September 25, 2014
A few years ago I was working as an advocate at a friend's legal proceeding. For convenience, I will call my friend Anne. As the judge opened the session, Anne shoved her phone over to me and said, "press record" which I did, not thinking too much about it. At the time, I was unaware that there were any particular policies in regard to audio recordings of legal proceedings.
Around 45 minutes into the proceedings, a Marshall approached me and asked, "Is that phone recording?" I answered, "yes." Please switch it off or I'll have to take the phone." said the Marshall. Immediately, I switched the phone off, feeling very embarrassed.
When the hearing was over, I was then walking out of the door with Anne when a clerk approached me and reprimanded me about the fact that I had tried to record the proceedings with my phone. "It is against court rules." Again, I apologized and said I would never do that again.
Thinking that we had come to an understanding, I then walked into the lobby with Anne and we began to talk about what had happened during the hearing. Suddenly there was a considerable amount of noise and I looked around to see clerks and Marshalls walking in and out of a courtroom. It turned out that our case was called back to the Courtroom. We all took our places, Anne and I on one side and the opposing attorney and Anne's ex on the other. The Judge walked in and took his seat with the Marshall crying out "All rise!" I was filled with curiosity about why we were all back again. "It has come to my attention," stated the Judge, "that the defense was recording the proceedings and I am here to say that no recordings are allowed in the courtroom during legal proceedings."
First a Marshall, then a clerk, now a judge and an entire open court proceedings to affirm this policy that members of the public may not make audio recordings in the courtroom! Clearly, everyone associated with the CT Judicial Branch felt strongly regarding this issue.
What is the official policy in regard to audio recordings? According to The Connecticut Practice Book Sec. 1.10a any member of the public is allowed to make audio recordings with the permission of the judge.
So my mistake was that I failed to ask permission of the judge. However, even if I had, I may not have received permission. According to the journalist Thomas B. Scheffey, who spoke early in 2009, "at this writing “P.B. 10-1a has apparently never been used to allow in-court recording."
What about the media? Does the media have any better access than the general public?
Under The Connecticut Practice Book Sec. 1-11C the media has the privilege to audio record legal proceedings subject to the approval of the court. The media is allowed to use these recordings not just for personal note taking, but for broadcast purposes as well. This is actually quite a broad ranging mandate that benefits the press.
However, audio recordings created by the CT Judicial Branch are not available for access or distribution. Thus, in a recent memo dated November 8, 2013, an employee of the CT Judicial Branch, Attorney Richard Loffredo, stated, "Except as noted below, unless otherwise ordered by the Court or provided by law, access to audio recordings of court proceedings is not available to the public, the parties, or their counsel. Transcripts of proceedings that are open to the public, however, are available upon request."
The audio recordings created by the CT Judicial Branch, and the transcripts based upon those recordings are considered part of the official record which is used as the basis for court decisions. No other recordings are considered acceptable for that purpose.
It is also important to note that The Connecticut Practice Book may allow the public and the media to make personal audio recordings in both civil and criminal matters, but what goes unstated here is that the CT Judicial Branch particularly does not want to have to allow audio recordings in more private areas of the law such as family court, juvenile court, or in cases of sexual crimes. So again, we are faced with rules and off the record practices which eliminate accountability in Family Court where so much of the corruption and wrongdoing that we complain about is taking place.
Many of us who are in Family Court have expressed concern that both the audio recordings and transcripts in family court cases are doctored and that they cannot be relied upon. Of course, it is true that if there is a dispute regarding the accuracy of the transcripts, a litigant can listen to the disputed area on the audio recording under the supervision of a court clerk and request a change on the transcript if there is a mistake. However, without an independent recording, it would be difficult for a litigant to develop a good argument once a controversy arose.
In 2009, a subcommittee established by the Judicial-Media Committee of the CT Judicial Branch spent four months examining just these issues. The members of this subcommittee consisted of Attorney Charles L. Howard (Chair); Deputy Chief Court Administrator, the Honorable Patrick L. Carroll III; the Honorable David P. Gold, Presiding Judge, Part A, Hartford Judicial District; Ms Nancy Brown, Judicial Branch Program Manager in the Court Transcripts Services unit; Mr. Thomas B. Scheffrey, Senior Writer, CT Law Tribune; and Mr. Patrick Sanders, CT News Editor, The Associated Press.
This subcommittee investigated what other States have been doing in regard to audio recordings. According to Judge Patrick Carroll in his statement to the Subcommittee, "no state currently has court rules in place which authorize members of the public to make audio recordings of court proceedings, even with the permission of the court."
So it looks as though the CT Judicial Branch is well in advance of other States.
In fact Judge Carroll stated, "While we have not ourselves researched the rules of every state, those rules which have been examined expressly limit their scope and applicability to the audio recording of proceedings by bone fide media outlets only." California is the one exception in that it allows members of the public to make their own audio recordings for note-taking or personal use.
Members of the subcommittee strongly disagreed with one another regarding the rights of members of the public to make audio recordings of legal proceedings to the point where they were unable to come up with joint recommendations at the end of the report. Instead, each member of the subcommittee provided an individual statement for the report. One member, journalist Patrick Sanders of the Associated Press resigned from the Subcommittee to protest the positions of the court professionals.
The essence of the disagreement was as follows. Ms. Nancy Brown, on behalf of court reporters, expressed concern about preserving the official record and not having competing versions of audio recordings which could muddy up the legal proceedings and lead to appeals.
She also expressed concern that "fraudulent or inaccurate transcripts made from personal recordings could be produced and sold" and further undercut the official record.
In addition, court reporters could end up losing substantial income if they lost their exclusive hold on copies of the audio recordings.
Attorney Charles L. Howard was concerned that conversations between counsel and clients, side bars with the court and statements by jurors might be recorded which would be entirely inappropriate. Judges commented on the fact that you could announce when individual members of the public should cease recording, but it would be literally impossible to stop people from doing so if they choose to ignore the instruction. Copies of these recordings could end up on the internet and they could be used to ridicule judges.
The journalists argued for public access to all CT Judicial Branch audio recordings and also argued that individual members of the public and the media should be allowed permission to make their own audio recordings.
Specifically, the 2009 subcommittee report stated that the journalists felt "that providing an accurate accounting [through free access to audio recordings] of what transpires in the peoples' judicial system only further strengthens the public's understanding of the Judicial Branch and its processes, and as such should be allowable as a matter of practicality.”
The report continued on to say that, “Mr. Sanders, in particular, felt that the Judge should only have the authority to restrict personal audio recordings if there was a compelling reason to do so, if there are no reasonable alternatives, and if such a limitation or preclusion is no broader than necessary to protect the compelling interest at issue."
Further, the journalists expressed their view that "what occurs in Connecticut's courtrooms belongs to the people of Connecticut", that "the need for an open judiciary is paramount", and that "the official court record belongs, collectively, to the public."
The journalists also recommended that the Judicial Branch implement the recommendation that court-made recordings are made available for purchase by the public as it is in many other state and federal courts. As Journalist Thomas B. Scheffrey stated, “"One of the more stunning things we learned was that our federal court system has a strikingly different approach to digital court recordings. Through the nationwide PACER document retrieval system, digital records of court hearings and trials in many federal courts can be obtained for $26 per compact disk, or just eight cents for a computer download of an audio file of an entire trial. "
And further, the U.S. Supreme Court audiotapes of oral arguments are available going back to the 1950s. There is even a CD of its "Greatest Hits" available on Amazon.
To that, Journalist Patrick Sanders added, "Courts are a public domain not a monopoly."
And again, Thomas B. Scheffrey remarked, "Simply put, I believe that there should be a presumption of openness, as expressed by the Chief Justice, in allowing audio recording of court proceedings. Much as executive and legislative public meetings and a hearings are open to citizens and reporters who are using personal recording devices, so should actions taken in a public forum by the state's judiciary. the Judicial Branch cannot justify holding itself to a different standard than other equal branches of government."
Despite these clarion calls for openness and transparency which theses journalists articulated so courageously, since the 2009 report, to my knowledge, there have been no changes in the stated policies of the CT Judicial Branch in regard to audio recordings.
As long as this is the case, litigants in Family Court will continue to believe that they are being denied their due process right to access to the court audio record of the legal proceedings. They will continue to speculate that the audio recordings are being tampered with and they will continue to view the transcripts that court reporters produce with a jaundiced eye.
However, even if we get some movement in this area of the law, the likelihood is that, as stated, Family Court will be the last to open up court proceedings to audio recordings by members of the public, if it ever happens at all. It is this overall lack of transparency in family court proceedings which has led to so many constitutional and human rights violations over the years.
As a final note, I would also like to point out that the Subcommittee Report of 2009 doesn’t make a single mention of the fact that the CT Judicial Branch has an obligation to provide audio recordings as a reasonable modification for people with disabilities under Title II of Federal ADA Law. Since the CT Judicial Branch continues to refuse to comply with Federal ADA Law this topic was kind of the elephant in the room that no one, apparently, cared to mention.