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I _ VIDEOTAPED TRIAL RECORDS

Evaluation and Guide by William E. Hewitt

Funding Provided by the STATE JUSTICE INSTITUTE Grant Number sn 87-06D-B-055

National Center for State Courts

Afinal report conducted pursuant to a grant to the National Center/or State Courts from the State Justice Institute 125874 U.S. Department of Justice National Institute of Justice This document has been reproduced exactly .as recei~e? from the person or organization originating it. Points of vIew or opInions stat~d in this document are those of the authors and do. not nec~ssan Y represent the official position or policies of Ihe NatIonal InstItute of Justice. Permission to reproduce this copyrighted material in mi­ crofiche only has been granted by National Center for State Courts

to the National Criminal Justice Reference Service (NCJRS).

Further reproduction outside of the NCJRS system requires permis­ sion of the copyright owner.

Copyright ©1990 by The National Center for State Courts ISBN 0-89656-099-6 NCSC Publication No, R-117

Library of Congress Cataloging-in.Publication Data Hewitt, William E. Videotaped trial records: evaluation and guide / by William E. Hewitt. p. cm. - (NCSC publication; no. R-1l7) Includes bibliographical references. ISBN 0-89656-099-6 1. Video tapes in courtroom proceedings--Dnited States. 1. Title. n. Series: Publication (National Center for State Courts) ; no. R-1l7 KF8725.H49 1990 347.73'13-dc20 [347.30713] 90-6043 CIP

This report was developed under grant number sn 87-06D-B-055 from the State Justice Institute. Points of view expressed herein are those of the authors and do not necessarily represent the ofP.cial position or policies of the State Justice Institute.

' . '.. " It may well be that the courts will some day ~dopt a recent mechanical innovation and that we shall have "talking movies" of trials which will make possible an almost complete reproduction of the trial so that the judge can consider it at his leisure.

- JUDGE JEROME FRANK Law and the Modern Mind (1930).

iii Video Recording Evaluation and Guidebook Development Project

Advisory Committee

Honorable Randall T. Shepard, Chair Mr. Robert L. Doss, Jr. Chief Justice Director Supreme Court of Indiana Georgia Administrative Office of the Courts Honorable Peter Ciolino Assignment Judge Honorable Rosselle Pekelis New Jersey Superior Court Judge Washington State Court of Appeals Honorable Candace Cooper Judge Mr. Jeffrey M. Arnold Los Angeles County Superior Court Administrative Director Circuit Court of Cook County, Illinois

Project Consultants

Dr. Anne Graffam Walker Dr. David A. Saari Forensic Linguist Professor, Judicial Administration Falls Church, Virginia The American University School of Public Affairs

Ex Officio

Mr. David Green Mr. Jerome E. Miller Jefferson Audio-Video Systems, Inc. Past President Louisville, Kentucky National Shorthand Reporters Association

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Page

List of Figures ...... xii List of Tables ...... xiii Acknowledglnents ...... xv Preface ...... :...... xix Introduction ...... xxi

Chapter 1. History of Video Recording and the Nature of the Equipment Used in the Study Sites ...... 3 History of Video Recording ...... 3 EarLy ProbLems in Kentucky ...... 4 Expansion and Improvement in Kentucky ...... 4 Institutionalization of Video Recording in Kentucky ...... 5 Expansion to Other States ...... 5 Equipment and How it Works ...... 6 Recording System ...... 6 PLayback Equipment ...... 8 Other Features ...... 8 Other Vendors ...... 9 Notes...... 11

Chapter 2. Methods and Evidence ...... 15 Attorney Survey ...... 15 Response Rate and Characteristics ofRespondents ...... 16 Highlights of the Survey Responses ...... 18 Interviews ...... 23

vii VIDEOTAPED TRIAL RECORDS

Page

Review of Sample Videotapes by Judges and Lawyers ...... 24 Limitations of the Study Method and Cautions About Interpretation ...... 25 Summary ...... 25 Notes ...... 27

Chapter 3. The Project Study Sites: Four States and Six Courts...... 31 Trial Courts: Jurisdiction, Caseload, and Organization ...... 31 State Judicial System Administration ...... 34 Agency Behind Implementation of Video Recording ...... 35 The Appellate Context in the Project Study Sites ...... 36 Organization ...... 37 Jurisdiction ...... 37 Case load and Workload ...... 37 Attitudes of the Appellate Judges ...... 41 The System of Court Reporting in the Sites ...... 41 Kentucky ...... 41 Michigan ...... 42 North Carolina ...... 43 Washington ...... 43 Summary ...... 43 Notes ...... 45

Chapter 4. Assessment of Video Recording on Ten Evaluation Criteria ...... 49 Faithfulness (Accuracy) of the Record ...... 49 Faithfulness v. Accuracy...... 50 Findings ...... 52 QUALITY OF RECORDING ...... 52 FAITHFULNESS OF TRANSCRIPTS ...... 54 Ease of Review: Videoiaped Records and Appellate Review...... 54 Kentucky's Reasonsfor Preferring Use of the Videotape as the Record for Appeal...... 54 Kentucky's Policy-What Its Critics Say...... 55 The Response by Court Officials in Kentucky ...... 57 Summary oflvIichigan' s Policy and Approach to Appellate Review of Videotaped Trial Records ...... 57

viii Contents

Page

SummaJY of the Policy Issues Regarding the Use of Videotape as the Recordfor Appellate Review...... 59 Expense ...... 59 Kentucky's Statewide Budgetfor Court Reporting and the Video Recording Project, 1984-88 ...... 60 Comparative Costs for Equipment and Operation of Video Recording and Traditional Court Reporting in the Trial Courts ...... 60 COURT REPORTER SALARY AND BENEFITS ...... 62 CONTRACTUAL SERVICES FOR COURT REPORTER REPLACEMENTS ...... 62 IN-COURT VIDEO CLERK SALARY AND BENEFITS ...... 62 RECORDS STAFF SALARY AND BENEFITS ...... 63 EQUIPMENT ...... 63 EQUIPMENT MAINTENANCE CONTRACT ...... 64 VIDEOTAPES ...... 64 OFFICE SPACE...... 64 SUMMARY OF TRIAL COURT EXPENDITURES ...... 64 Costsfor Appellate Case Processing ...... 64 EQUIPMENT FOR THE APPELLATE COURTS ...... 65 INDIGENT TRANSCRIPTS ...... 65 COSTS RELATED TO INCREASED TIME FOR REVIEWING THE RECORD ...... 66 Public Defender ...... 66 PERSONNEL COSTS ...... 66 EQUIPMENT COSTS ...... 67 Private Attorneys ...... 68 Private Litigants ...... 68 Summary of Cost Implications of Video Recording ...... 68 Record Availability ...... 71 The Stages ofAppel/ate Case Processing ...... 72 Comparison of the Availability of Videotaped and Narrative Recordsfor Appeal...... 72 Comparison of Transcript Preparation Time for Narrative Records ...... 73 Effect of Using Videotape on Overall Appellate Case Processing Time in Kentucky ...... 75 Trial Court Experience with Availability of Videotaped Records.. 78 Conclusion ...... 78 VIDEOTAPED TRIAL RECORDS

Page

System Reliability ...... 79 Obtrusiveness ...... 81 Preservation. of the Record ...... 83 Policy Flexibility and Integration with Other Technology...... 85 Video Recording and CAT-Brief Comments on Respective Advantages ...... 85 Integration with Video Depositions and Closed Circuit Television ...... 86 Effect on the Court System and Legal Practice ...... 86 Flexibility ...... 86 Availability of the Record ...... 87 Recreation of Courtroom Events (Record Faithfulness) ...... 87 Education .,...... 88 Concerns About Effects of Videotape on Legal Practice ...... 88 Summary ...... 90 Resistance to Video Recording ...... 91 Resistancefrom Court Reporters ...... 92 Resistance from the Bar and Bench ...... 92 Change in Attorney Attitudes with Experience ...... 94 Conclusion ...... 95 Notes ...... 96

ChapterS. Implementation ...... 103 Deciding About Implementation-The Framework ...... 103 Deciding Whether to Use Videotape to Record Court Proceedings ...... 104 Court Reporters' Perspective on the Study's Methods and Implications ...... 105 ABSENCE OF EXPERIMENTAL METHODS ...... 105 LIMITATIONS IN ATTORNEY SURVEY DESIGN...... 106 UNIQUENESS OF KENTUCKy...... 106 IMPORTANCE OF CERTIFICATION PROGRAMS ...... 106 COMPARING VIDEO RECORDING TO TRADITIONAL REPORTING IS SHORTSIGHTED ...... 106 Author's View of the Court Reporters' Perspective ...... 107 Review ...... 107

x. Contents

Page

Implementing Video Recording ...... : 107 Recommendations/or State-level Attention ...... 108 ORGANIZE AN ADVISORY AND PROJECT OVERSIGHT COMMITIEE (OPTIONAL) ...... 108 REVIEW REGULATIONS (STATUTES, RULES, CANONS) ...... 108 RESOLVE THE POLICY THE COURT WILL FOLLOW REGARDING THE FORM OF THE RECORD ...... 110 Steps Required in States Where the Videotape Serves as the Record on Appeal...... 111 Steps Required When the Videotape Is Transcribed ...... 113 Recommendations for Joint State and Local Attention ...... 115 SELECT THE VENDOR AND EQUIPMENT TO BE USED IN THE TRIAL COURT ...... 115 MAKE REQUIRED ADJUSTMENTS TO PROCEDURE FOR PROCESSING APPEALS ...... 115 ESTABLISH A TRACKING SYSTEM TO IDENTIFY VIDEOTAPE AND NON-VIDEOTAPE APPEALS ...... 116 Recommendations/or Local Court Attention ...... 116 INVOLVE BAR IN IMPLEMENTATION PLANNING ...... 116 INSTALL THE EQUIPMENT ...... 117 DECIDE WHO WILL OPERATE THE EQUIPMENT AND MAKE THE VIDEOTAPE LOG ...... 117 DESIGN VIDEOTAPE LOG FORMATS AND RECORDS MANAGEMENT PROCEDURE ...... 118 ESTABLISH STANDARDS FOR IN-COURT DUTIES OF JUDGES, COURT STAFF, AND LAWYERS RELATED TO MAKING THE RECORD ...... 119 TEST THE SYSTEM FOR A MINIMUM OF 30 DAYS ...... 120 Conclusion ...... 120 Notes ...... 124

Appendices ...... 125 Bibliography ...... 173

xi Page

Figure 1.1 Locations of JA VS Video Recording Systems ...... 7 Figure 1.2 Basic Equipment Configuration ...... 9 Figure 2.1 Percentage of the Total Survey Response Represented by Each Site ...... 17 Figure 3.1 Summary of Rules Governing the Use of Videotape on Appeal in the Four States ...... 38 Figure 4.1 Comment from an Attorney Questionnaire About Verifying Faithfulness of a Transcript ...... 50 Figure 4.2 Comments from Volunteer Judges and Lawyers Who Viewed Videotapes: Is the Record too Faithful? ...... 51 Figure 4.3 Comments from Michigan Attorneys About Faithfulness .... 55 Figure 4.4 What Attorneys Say About Working with Videotapes to Prepare an Appeal ...... , ...... 58 Figure 4.5 Time to Complete Appellate Transcripts: Comparison of Court Reporter and Transcript Service Performance in Michigan and Washington ...... 74 Figure 4.6 Increase in Video Installations (Louisville) ...... 76 Figure 4.7 Kentucky Appellate Case-processing Time Intervals, 1986-89 ...... 76 Figure 4.8 What Judges Say About Flexibility of Video Recording ...... , ...... 87 Figure 4.9 Comments on Playback in Court for Jurors ...... 88 Figure 4.10 What Attorneys Say About Positive Effects of Video on Trial Practice ...... 89 Figure 4.11 Concerns Attorneys Have About Appellate Review ...... 90 Figure 4.12 "Bad Press" on Video Recording ...... 93 Figure 5.1 Implementing Issues and Recommended Activities ...... 109

xii Page

Table 2.1 Attorney Survey Response Rates ...... 17 Table 2.2 Attorney Survey: How Often Did Responding Attorneys Appear in Court During the Last Year ...... 18 Table 2.3 Attorney Survey: How Often Did Responding Attorneys Appear in Video Courtrooms During the Past Year ...... 19 Table 2.4 Attorney Survey: Number and Percentage of Attorneys Who U8ed Videotape to Work an Appeal During the: Past Year ...... 19 Table 2.5 Attorney Survey: Opinions About Faithfulness of Court Reporter and Videotape Records ...... 20 Table 2.6 Attorney Survey: Opini.ons About Dependability of Court Reporter and Video Recording Methods ...... 21 Table 2.7 Attorney Survey: Responses of Louisville Attorneys to Questions Comparing Video Recording and Court Reporters on the Criteria of Reliability of the Method and Availability of the Record ...... 21 Table 2.8 Attorney Survey: Opinions About Advantages Versus Disadvantages of Video Recording ...... 22 Table 2.9 Attorney Survey: Overall Attitude of Attorneys After Experience with Video Recording ...... 22 Table 2.10 Attorney Survey: Change in Attorney Attitudes After Experience with Video Recording ...... 23 Table 3.1 Summary of Subject Matter Jurisdiction for Trial Courts in the Study ...... 32 Table 3.2 Location, Population, Number of Judges, Caseload, and Workload of the Trial Courts in the Study Sites ...... 33 Table 3.3 Selected Characteristics of the Intermediate Courts of Appeal in the Study Sites, 1987 ...... 39

xiii VIDEOTAPED TRIAL RECORDS

Page Table 4.1 Attorney Opinions About Faithfulness of Court Reporter and Videotape Records ...... 53 Table 4.2 Kentucky Expenditures for Court-reporting Services for Fisical Years 1984 and 1988 ...... 61 Table 4.3 Comparative Costs of Video and Court Reporter Systems in Seattle and Pontiac ...... 61 Table 4.4 Annual Costs for Trial Courts: Court Reporter v. Video System (per Courtroom) ...... 65 Table 4.5 Number of Videotapes Making Up the Record for Kentucky Videotape Appeals in 1988 ...... 67 Table 4.6 Cost Savings that Might Be Realized in Washington's Courts by Using Video Recording ...... 69 Table 4.7 Time from Notice of Appeal to Notice of Certification of the Record in Kentucky: Court Reporter v. Videotape Records, 1986-89 ...... 73 Table 4.8 Appellate Case Processing Time in Kentucky: Court Reporter v. Videotape Records, 1986-89 ...... 77 Table 4.9 Louisville Attorney Responses on Record Availability ...... 79 Table 4.10 Attorney Experience with Trial Delay with Video Recording and Court Reporters ...... 82 Table 4.11 Attorney Responses Comparing Dependability of Court Reporters and Video Recording ...... 82 Table 4.12 Statutory Requirements Governing Verbatim Records Preservation ...... 84 Table 4.13 Attorney Opinions About the Quality of Litigation .... , ...... 91 Table 4.14 Attorney Opinions About Advantages Versus Disadvantages of Video Recording ...... 91 Table 4.15 Attitude Change by Lawyers After Experience with Video Recording ...... 94

xiv he principals in Kentucky who ings. Similar special thanks go to Sally successfully introduced video­ Dunne, trial court administratorinRaleigh, I1taped trials from implementation to North Carolina, and Bobbi Olson, court institutionalization overcame early tech- services specialist with the office of the nological deficiencies and professional administrator of the courts in Washing­ skepticism. Given the conservative na­ ton, who always made time to help with ture of the court community, the Ken­ special requests. Thanks also to Jan tucky experience is a major accomplish­ Michels, Mike Unruh, Devona Jones, ment. State court administrator Don Judith Cunningham, Diane Smigelski, Cetrulo, who enjoyed the constant sup­ Mark Oldenburg, Robert Carlberg, Carol port of Chief Justice Robert F. Stephens, Kinelski, Laura Stammel, and Tim Vize, changed videotaped trial records from a court officials who made essential contri­ curiosity to a viable alternative that other butions to data collection; Diane Sponsel­ jurisdictions can consider adopting. lar of the Legal Record, a court transcrip­ So many people from courts and local tion service, also helped us with data bar associations contributed time to this collection. Judges James Chenault, John research that acknowledging each person's Skimas, Ken Corey, and Richard Lamb contributions would require a chapter in deserve a special thanks, along with the the report. Those contributions made the 23 other trial and appellate judges who study possible. Special thanks for their spent time with us. time and concentration are due to the John Scott, clerk of the supreme court members of the project advisory commit­ and court of appeals in Kentucky, tackled tee and Randall Shepard, chief justice of the court's databases and extracted the the Indiana Supreme Court, who refereed data that measured the effect video re­ the committee meetings, and to the volun­ cording has been having on criminal teer appellate and trial court judges and appeals in Kentucky. lawyers who watched and evaluated six­ RobertA. Lowe contributed substan­ hour videotapes of trial court proceed- tially to the research and prepared drafts

xv VIDEOTAPED TRIAL RECORDS for parts of chapters one and four. The and Gene Flango were at hand, and cor­ genesis of the project lies with David C. dial, when software and statistics were Steelman and Geoff Gallas, who thereaf­ troublesome. Adrian Nelson researched ter offered their ideas, guidance, and the preservation of videotape records and encouragement in its delivery. conceived an effective approach to ana­ Deborah Gause met unreasonable lyzing hundreds of written comments by expectations throughout the project as attorneys; Elizabeth Hargrave served the administrative secretary and center for project as a volunteer who summarized the project team. With too much to do and the survey data and brought it to life with too many people to do it for, she did it Harvard Graphics. nevertheless. Colleagues Roger Hanson Finally, our appreciation is extended and David Rottman, from data to drafts, to the State Justice Institute and its execu­ offered counsel and made contributions tive director, David Tevelin, who moni­ to improving the style and organization of tored the project. Theirperspicacity made the report; Craig Boersema, Pam Casey, the study possible.

xyi National Center for State Courts

Geoff Gallas Director Research and Technical Services

Project Staff

William E. Hewitt Senior Staff Associate, Project Director Robert A. Lowe Senior Staff Associate David C. Steelman Regional Director, Northeastern Regional Office Adrian Nelson Research Intern Beth Hargrave Project Volunteer Deborah F. Gause Administrative Secretary

Publication Service

Dennis Miller Director Bill Fishback Editor Charles F. Campbell Associate Editor Stevalynn Adams Art Director Hisako Sayers Assistant Art Director Mary McCall Publications Production Coordinator

xvii his report is about video recording Traditional court reporting, however, sets as an alternative means to make the standard against which other methods ~the record of trial court proceed­ of reporting must be measured. The ings. The subject is a sensitive one. It comparisons found in the report between touches on the employment of shorLltand traditional court reporting and video re­ reporters, traditional members of the cording, therefore, are (in the author's American courthouse work group. It is view) a methodological necessity, not an also a complex subject: the work that explicit or implied attempt to rate or rec­ court reporters do is essential to American ommend alternative approaches. appellate practice; shorthand reporters Second, despite the factthatthe study make up a significant proportion of the was not commissioned to examine com­ personnel who offer direct support to puter-aided transcription (CAT), the sub­ judges in a typical courthouse; the serv­ ject intruded throughout the research in a ices performed by court reporters often go way that made it difficult to ignore. CAT well beyond making the record of pro­ was frequently brought up by lawyers and ceedings, and the nature of those services judges as the competing technology to varies from courthouse to courthouse, video recording. Moreover, comparing courtroom to courtroom. Within this video recording to court reporters, as one context of sensitivity and complexity, the must, opens the door to comparing video preface answers three questions raised recording to court reporters equipped with about the report while it was still in draft CAT and trained to use it at its highest form. potential. It proved difficult to altogether First, the study was not intended to avoid glancing through that open door, rate the advantages of alternative meth­ with the result that computer-aided tran­ om: of court reporting. Audio recording, scription is discussed in more than one for e Kample. is not addressed in this study. place in the report, especially in the con-

xix VIDEOTAPED TRIAL RECORDS text of policy flexibility and integration belief by the National Center for State with other technology (one of the study's Courts and the author that complex and ten evaluation criteria). subtle interplays among people, technol­ Finally, video recording is a viable ogy, procedure, and goals are at work in method of court reporting that compares court reporting and that those methods favorably with traditional court reporting which may work well in one court will not on eight of ten evaluation criteria used in necessarily work well in another. Hence, the study. However, this report does not this is a guide to assist each court in decid­ take a position about whether courts should ing which court-reporting methods suit its convert to video recording. The reason circumstances and needs. for not making a recommendation is the

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The practice in American courts of making a verbatim record of the proceedings affords an interesting illustration of how a procedural technique, which when super­ ficially viewed seems to pertain merely to mechanical routine, can exert a vital and even dominating influence on theformulation ofphilosophy ofadjudication as well as on day-by-day judicial administration.

-DAVJD W. LoUISELL and MAYNARD E. PmSIG, ) 953

his report introduces judicial may be important to jurors-are in the leaders and court personnel to a nature of things not concomitantly recorded new way to make the "verbatim rec­ with the spoken word. This is one reason ~ for the suggestion that trials be recorded as ord" of trial court proceedings. In 1953 "talking movies." the legal scholars David W. Louisell and Maynard E. Pirsig argued that the verba­ Absent a "talking movie," Louisell tim record of proceedings influences the and Pirsig state that techniques and procedures followed in the courtroom, the behavior of lawyer ... it is not unknown for counsel, faced with and judge, and the interrelationships be­ a trial judge guilty of prejudicial conduct tween them. 1 In spite of a profound by attitude, demeanor or tone of voice, to respect for the significance of the record have the reporter note in the record the and for the profession of court reporting, physical manifestations of such judicial 2 Louisell and Pirsig acknowledged limits conduct. to what could be preserved through the written word. The idea of using "talking movies" for making the record of trial proceedings Of course it is true that the judge's manner was originally suggested by Judge Jer­ or demeanor in speaking-those subtle ome Frank in Law and the Modern Mind nuances that can be conveyed by tone of in 1930.3 That idea was never taken voice or attitude of expression and which seriously, but Louisell and Pirsig con-

xxi VIDEOTAPED TRIAL RECORDS eluded their 1953 paper with a discussion trial records and describes the equipment of "proposals for mechanical recording" found in all courts that use video record­ (i.e., audio recording). While they cor­ ing to make the official record. Chapter 2 rectly predicted that "mechanical instru­ describes the central evaluation methods, mentalities" would not displace court highlights some of the findings, and iden­ reporters in American practice but rather tifies some limitations of the study. "be utilized by him in his ultimate and in­ Chapter 3 describes the six study sites dependentresponsibiIity of obtaining and located in four states. Descriptions of the preserving the record," they also noted trial court context, the state's administra­ that what prompted consideration of au­ tive structure, the agency behind imple­ dio recording were concerns based in part mentation of video recording, the appel­ on "the desirability of effecting econo­ late context, and the system of court re­ mies, and partly on the desirability of porting are included in Chapter 3. Chap­ more accurately and fully reproducing the ter 4 is the heart of the report. The ten trial and exposing nuances not recorded evaluation criteria used to organize the with the written word."4 Those concerns study and the findings about each are continue today. separately examined. Chapter 5 presents Since the advent of video recording the factors that judges and their adminis­ in the courts in Kentucky in the mid- trative personnel should consider when 1980s, "talking movies" now join audio deciding whether video recording is de­ recording as an innovation that court lead­ sirable in their jurisdiction. The chapter ers will be asked to consider. To aid them also makes and discusses a series of rec­ in their deliberations, the National Center ommendations for implementation. for State Courts undertook a project to An appendix contains some of the "assess the current experience with the data relied on most heavily for the study use of videotape as a technique for mak­ findings, a list of volunteer judges and ing the record of state trial court proceed­ lawyers who reviewed sample videotapes, ings." The objective of the project was to sample rules and orders from several states give state court chief justices, trial court that were written to enable video record­ presiding judges, and their corresponding ing, and lists of individuals who were administrative and support personnel the interviewed in aU the sites. One of the necessary background information needed valuable sources of information collected to make an informed judgement about in the study were comments from an attor­ whether and how to proceed with the use ney survey questionnaire. These 370 of videotape as an official court record. comments have been organized and pre­ This report is written to achieve that goal. served as a separate document. The report has five chapters. Chap­ ter 1 introduces the history of videotaped

xxii Notes

1. Louisell and Pirsig, 1953, p. 29 3. Frank, 1930, p. 110 notet. (emphasis added). 4. Louisell and Pirsig, 1953, p. 45. 2. Ibid. p. 34.

xxiii History of Video Recording and the Nature of the Equipment Used in the Study Sites History of Video Recording and the Nature of the Equipment Used in the Study Sites

History of Video Recording Those objections continue to be a major issue in the debate about videotape today. . deo recording was fIrst used to In 1982, Judge James S. Chenault make a record of court proceed­ instituted video recording to make the ~ings in the state of Illinois in 1968, court record in the Madison County where it was a supplement to stenographic (Richmond, Kentucky) Circuit Court. The reporting.l Video recording was used in system installed by Judge Chenault re­ 1971 in Ohio to present all the testimony quires a camera operator who works in a and the judge's instructions to juries in small antechamber adjacent to the court­ civil cases, but not as the means of making room to control the cameras. The video­ the official record of proceedings. From tape record is not transcribed; instead, the 1973 through 1975, the Franklin County tape itself serves as the offIcial record. Court of Common Pleas in Columbus, The system has been operating continu­ Ohio, and the Hamilton County Criminal ously since 1982, and the judges and at­ Court in Chatanooga, Tennessee, experi­ torneys there regard it favorably.3 How­ mented with video recording of trial pro­ ever, Madison County's approach was ceedings to make the "verbatim record." not replicated elsewhere, particularly These initial efforts were seriously ham­ because it requires an operator to control pered by very obtrusive, expensive equip­ the cameras. ment that required operators for all cam~ Operatorless video recording to make eras, additional lighting, and other adjust­ the record of proceedings in trial courts ments in the courtroom. Mixed results led was introduced in the courtroom of circuit these experiments to be discontinued. court judge Laurence Higgins in Louis­ Among the reasons for discontinuing video ville, Kentucky, in December 1984. The recording in Columbus and Chatanooga system installed there was developed by were objections from appellate judges the Louisville fIrm of Jefferson Audio and lawyers about the difficulty of work­ Video Systems, Inc. (IA VS). Following a ing with videotape when reviewing a case.2 generally favorable experience with video

3 VIDEOTAPED TRIAL RECORDS recording in Judge Higgins' courtroom in (lights) to indicate when the equipment Louisville, judicial leaders became con­ was not recording. Both the automatic vinced that video recording would work rewind and the passive-warning features and made a commitment to improve the of the equipment on occasion caused trial technology and expand its use. During records to be incomplete. (On one welI­ the next three years, 12 additional courts publicized occasion~ so much of the rec­ in Kentucky began using the JA VS sys­ ord was lost that a mistrial was declared.) tem. Finally, the policy in Kentucky is Contributing to Kentucky's decision that the tape itself is the official record on to pursue video recording was a cutback appeal, and written transcripts are not budget imposed by the legislature be­ routinely available to attorneys as they cause of revenue shortages. There was brief a case for appeal. This policy is con­ also a perception that the skills of the troversial, because lawyers and judges official court reporters were unsatisfac­ find the tape to be more difficult and time­ tory. Very few official reporters used consuming to work with than a written computer-aided transcription (CAT) sys­ transcript.s tems, and a higher than nonnal percent­ age used manual shorthand.4 Expansion and Improvement in Kentucky Early Problems in Kentucky Limitations on purchase and instal­ In the early years, problems were lation funds caused the conversion from experienced with the video recording traditional reporting methods to video system, especially among appellate attor­ recording to occur gradually. During this neys and judges. The original equipment expansion of the system, improvements did not use hi-fidelity sound technology, in technology and procedure were incor­ and appellate attorneys and judges com­ porated along the way; Kentucky has plained about poor audibility, particularly passed through two generations of equip­ of recorded bench conferences. In addi­ ment and procedure and is entering a tion, the videotape provided to lawyers third, and the problems with the early for preparing an appeal is a copy of the system appear to have been largely elimi­ original recording, and may have a lower nated. Hi-fidelity recording equipment is quality of sound and image than the origi­ now standard, and cameras and micro­ nal. phones have been improved. The auto­ There also were occasional problems matic rewind has been discontinued, and with equipment operation during trials. an audible tone now warns of recording Recording equipment originally incorpo­ failure or of a tape that is running out. rated manufacturer's automatic rewind Following a practice introduced in other features (a tape that ran out would rewind states, Kentucky is adding two additional automatically, and testimony previously recording devices in the courtrooms to recorded would be recorded over). JA VS make original recordings for attorneys equipment also used passive warnings that are available at the close of the ses-

4 History of Video Recording and the Nature of the Equipment Used in the Study Sites sion of court, thus reducing, if not elimi­ it a grant for $100,000 to upgrade early nating, the need for attorneys to work with installations of equipment and expand its tapes that may be of diminished quality use. In his speech to the committee in and making it more convenient to obtain support of the program, Chief Justice them. Robert F. Stephens cited "cost, delay, and The judicial leaders in Kentucky do the quality of justice" as the three major not plan to alter their policies about using complaints from the public about the court videotape as the form of record for attor­ system, and he suggested that the video neys and appellate courts, at least for the recording system has a positive effect on foreseeable future. They intend instead to all three. address Gomplaints through improved playback equipment and better training What are the three major complaints from for attorneys and appellate court person­ the public today about the court system? nel. Cost, delay and quality of justice. We in the Kentucky Courts, with the help Institutionalization of of Jefferson Audio Video Systems, have Video Recording in Kentucky developed a court reporting system that, In addition to the chiefjustice and the significantly and positively, impacts all director of the state administrative office three-it is cost effective for both the courts and the litigants, time efficient, of the courts, Don Cetrulo, some appellate and, above all, it substantially-visibly­ and trial court judges actively campaigned improves the quality of the trial tran­ in support of video recording, both within script, and with it the quality of justice. 7 the state and in other states. While one -Chief Justice ROBERT F. STEPHENS appellate court judge campaigned actively against the system, other judges on the Following expansion aft~r receiving circuit court and the court of appeals the grant and additional state appropria­ adopted a wait-and-see attitude and kept tions, video recording is found in 32 ofthe their own counsel as the system was de­ commonwealth's 91 circuit courtrooms. veloped.6 As funds allowed, systems were In the 30th circuit in Jefferson County installed where circuit court judges re­ (Louisville), all 16 courtrooms use video quested them. As the number of court recording. In Madison County, where reporter positions declined, law clerks for video recording has been used for eight judges were added with funds made avail­ years, there are judges and attorneys who able through the reduction in court re­ have rarely worked in courts where there pOlter salary costs. are court reporters, and they consider that In 1988, the state's court system won practice as anachronistic. an award in national competition from the National Committee on Innovations of Expansion to Other States the Kennedy School of Government at In July 1987 Judge John Skimas, of Harvard University for its program of Vancouver, Washington, became the first video recording. The award carried with judge to use the JA VS system outside of

5 VIDEOTAPED TRIAL RECORDS

Kentucky. Installations of the equipment An additional machine plays back video­ in courtrooms in Raleigh, North Carolina, taped depositions or other evidence, and and Kalamazoo and Pontiac, Michigan, anything played back on that machine is soon followed. By October 1989, the automatically recorded onto the machines JAVS system existed in 60 courtrooms in that make the official record. The system the United States. These 60 sites are includes video cameras, microphones, located in 11 states, and other states such speakers, monitors, videotape recorders, as Minnesota and Maryland are preparing miscellaneous cabling, optional equip­ to implement video systems. Figure 1.1 ment, and a computer that controls a sound shows a list of the locations known to use mixer and camera operation. The typical the Jefferson Audio Video Systems Auto­ layout for microphones includes separate matic Court Recording System. The sites coverage of the judge's bench, the coun­ are shown by state and city (with total sel tables, the witness box, and the jury number of systems in parentheses) and by box. Cameras focus in particular on the court name. Except for the T}.S. district bench, witness box, and counsel tables. court in Arizona aHd the probate court in The entire litigation area, however, is Pontiac, they are all state courts of general usually covered by the camera placement. jurisdiction. Some of the states listed are Normally, the placement is arranged to also planning to install JA VS systems in specifically exclude the jury box. additional courtrooms. The system is completely automatic, and no operator is required except to load Equipment and How it Works the tape in the video recorders and to start the machines in the record mode. The The audio video recording system cameras and video playback unit are found in the courts uses voice activated switched by the "brain" of the system, cameras controlled by a patented compu­ which is the patented audio mixer. When terized mixer developed by Jefferson the computer and monitors are left on Audio Video Systems,Inc. (JAVS). JAVS during the day, the cameras and micro­ installs and warrants the complete system phones work, and the system acts like a for one year and provides an ongoing closed-circuit television system. What maintenance service for all of the equip­ shows on the monitors is only recorded ment after the first year, for approximately when the videotape recorders are engaged 5 percent of the purchase price. The in the record mode. The cameras focus on equipment configurations are basically one part of the courtroom at a time and the the same in all of the courts, with minor microphones are also switched as a per­ variations from site to site. son talks. The volume level for each speaker is adjusted automatically in the Recording System mixer. The audio mixer continually reads Two to four videotape recording the ambient sound level in the room and machines (VTRs) record the proceedings. gives priority to the dominant sound. There

6 History of Video Recording and the Nature of the Equipment Used in the Study Sites

Figure 1.1

Locations of JAVS Video Recording Systems

November 1989

State City (Number). Jurisdiction Arizona Tucson (2) U.S. District* Arkansas Pine ~Iuff (1) Circuit Court California Riverside (1) Superior Court Florida Miami (1 ) Circuit Court* Hawaii Hilo (1 ) Circuit Court Kentucky Bowling Green (2) Circuit Court Catlettsburg (1) Circuit Court Covington (1) Circuit Court Elizabethtown (2) Circuit Court Frankfort (1) Circuit Court Glasgow (1) Circuit Court Hodgenville (1) Circuit Court Hopkinsville (1 ) Circuit Court Lexington (4) Circuit Court Louisville (16) CirCUIt Court Nicholasville (1 ) Circuit Court Richmond (1 ) Circuit Court Michigan Coldwater (1 ) Circuit Court Detroit (1 ) Circuit Court Howell (1) Circuit Court Kalamazoo (1) Circuit Court Pontiac (2) Circuit Court Probate Court St. Joseph (1 ) Circuit Court North Carolina Raleigh (1) Superior Court

Oregon Portland (1) Circuit Court Salem (1 ) Circuit Court Virginia Salem (2) Circuit Court Washington Seattle (3) Superior Court Stevenson (1 ) Superior Court . Spokane (2) Superior Court Vancouver (1) Superior Court * Systems are not used to make the official record of court proceedings.

7 VIDEOTAPED TRIAL RECORDS

is one microphone recording at all times viewing. When tapes are played back on onto one channel of the audiotape, while a standard television, commercial chan­ the sound-mixed recording is directed to nels resume playing when the viewer stops the other. Since there are a minimum of the tape. This is annoying, particularly two recorders operating at the same time, since the court record will often be played each recording two channels, there is back at a volume setting that is higher than ample back up in the event some compo­ normal for television viewing. nent of the system fails. The judge has a The playback equipment also has mute switch that may be used during special search features and a "speed view­ bench conferences, and there is a control ing/listening" feature. The search equip­ that engages just one camera and over­ ment allows the tape to be run forward or rides the voice activation system. (This in reverse at higher than normal speeds in feature has sometimes been used improp­ programmable increments. A viewer uses erly, reSUlting in the production of a rec­ the tape log to ascertain the portion of the ord that does not capture the image of record that is wanted and calculates how each speaker in the room.) many hours or minutes of recorded time The systems generate date and time has elapsed between where the tape is and onto the videotape, which provides refer­ the section of tape that is sought. Tne ence points for subsequent review. As amount of recorded time to run through with audiotapes (electronic sound record­ (forward or back) is then entered into the ing) it is necessary that a log of proceed­ program, and the tape runs quickly to the ings be made with references to the date/ desired location. Programming is per­ time image on the screen at each pertinent fomled on a hard-wired console in 15- point of the recorded proceeding. These minute increments, or to the minute on a are made by the judge in some courts or by hand-held remote device. The monitor the court clerks in others. (Tape counters screen displays the search time as it is set provided on VTRs do not work to provide and executed. reference points, since readings vary from A speed viewing system (called a 2X machine to machine.) device by the vendor) is also available. It plays the tape at twice the normal speed; Playback Equipment in this mode, the picture can be seen and While the tapes may be played back speakers understood while therevieweris on any standard VTR, special equipment skimming the record. Figure 1.2 summa­ is available (and highly recommended) rizes the basic features of the system. for use when attorneys and judges work with tapes for appeals or other matters. Other Features The special equipment uses monitors Other major features of the JA VS instead of standard television screens for system include:

8 History of Video Recording and the Nature of the Equipment Used in the Study Sites

• Chamber Option: gives the ability to Other Vendors monitor the courtroom from the judge's A characteristic feature of the JAVS chamber as well as to OIiginate pro­ system is a camera image that shifts from ceedings from the chamber. one place to another as the dominant sound • Dub System: used to make copies of shifts. Noises that occur during a period videotapes when they are needed. of relative quiet attract the camera and • Transcription Unit Option: special make it jump to the noise source and then VTR units can be set up with foot­ return to the main speaker. This is a pedal controls for transcribing pur­ feature that some users of the JAVS sys­ poses. tem find annoying. Equipment being • Holding Cell Option: incorporates tested by other vendors will apparently features for televising and two-way not use the patented sound mixer that communication from remote sites for controls the voice activation feature. arraignments or other similar purposes. Instead, camera zones divide the room,

Figure 1.2

Basic Equipment Configuration

Recording System • A voice activated hi-fidelity sound system • 5 to 1 0 cameras .. 5 to 10 microphones .. 2 to 4 recording units • 1 playback unit for depositions .. Time counter on screen for reference • Monitor in courtroom and other locations .. Microphones and cameras in "Chambers • 6-hour tapes ... Log required for reference .. Cost: $60,000-70,000

Playback System • Any typical home video system will work .. High fidelity preferred-very important • Monitor-not lV-preferred • Programmable fast search feature is available and preferred .. 2X playback feature is available • Cost $2,400-$3,800

9 ----~~- .. ------

VIDEOTAPED TRIAL RECORDS and all zones are recorded and shown phia, New Orleans, and San Antonio. simultaneously on split screens. These (JA VS has installed equipment in the new approaches are in the development federal court in Pittsburgh, the fourth court stage only. The San Bernardino County, that is participating in the federal court California, limited jurisdiction court uses experiment.) None of these systems are one, and another is installed on a tempo­ yet being used to make the official record. rary basis in the federal district magis­ The U.S. administrative office of the courts trates court in San Francisco. will be evaluating its experimental sys­ The U.S. administrative office of the tems during 1990. courts has accepted bids from three other A list of all vendor names, addresses vendors to install equipment experimen­ and contact persons is included in Appen­ tally in federal district courts in Philadel- dixD.

10 Notes

1. Coleman, 1977(b) 4. See Chapter 5, note 2. 2. Kosky, 1975 p. 232; Coleman, 5. Virtually without exception, lawyers 1977(a) p. 13. These concerns are also listed and judges interviewed for the study held this under "Practical and Procedural Issues" by opinion. Ernest Short and Associates in a report to the 6. Interviews were conducted with 9 of Judicial Council of California in 1976. See the 14 judges of the Kentucky Court of Ap­ Ernest Short & Associates, 1976 p. 21. peals in the summer of 1989. The views of two 3 A visit was made by the NCSC to judges who were not interviewed are well Richmond, Kentucky, in the summer of 1989. known (Judge McDonald and Judge Lester). The two circuit court judges, the prosecuting One is a strong supporter and one is a vocal attorney, two public defenders, and four pri­ opponent. The opinion ofjudges on the inter­ vate attorneys were interviewed. One judge mediate court of appeals about video record­ and one attorney had little professional expe­ ing is mixed. Most of the judges acknowledge rience with other forms of reporting. The the savings in cost and time to produce the prosecuting attorney has worked with both record, but they would prefer to use a tran­ traditional court reporting and video record­ script for routine review. ing; and he disparages traditional methods. 7. Chief Justice Robert F. Stephens, Attorneys in Richmond, as elsewhere, found speech to the National Committee on Innova­ that working with the tape for purposes of tions, Kentucky School of Government, Har­ appeal was a drawback. In all other respects, vard University (Date Unknown). they praised the system highly.

11 Methods and Evidence Methods and Evidence

en evaluation criteria organize of Kentucky , Michigan, Washington, and the evaluation study. Chapter 4 North Carolina. To obtain additional T1discusses in detail each of the crite­ information about the most important of ria. These criteria reflect what previous the 10 criteria-the faithfulness of the research and writings on the subject have record-volunteer lawyers and judges established as important for evaluating viewed videotapes obtained from the study alternative approac~es to making the rec­ sites and evaluated them using a struc­ ord of trial court proceedings.l tured questionnaire. Court budget and case records also were examined when­ Ten Evaluation Criteria ever possible to provide better empirical • Faithfulness (Accuracy of the Record) evidence about one or more of the criteria. • Ease of Review • Expense Attorney Survey • Record Availability • System Reliability Since traditional court reporting has • Obtrusiveness established the standard for an acceptable • Preservation of the Record approach to making the record of pro­ • Policy Flexibility and Integration of ceedings, it was essential to the evalu­ Other Technology ation that video recording be compared • Effect on the Court System and Legal with traditional court reporting on the Environment central evaluation criteria. The method • Resistance to Video Recording chosen to accomplish this was a survey of attorneys' experience with and attitudes Data collection for the study relied about video recording and traditional court primarily on a survey of 1,708 lawyers, reporting. Underlying this approach were followed by interviews with nearly 100 two assumptions: first, the evaluation appellate and trial judges, lawyers, and criteria (particularly record faithfulness) court administrative personnel in the states are difficult to measure objectively, but

15 VIDEOTAPED TRIAL RECORDS do lend themselves to quantitative meas­ naires were mailed with a cover letter urement of reported experience and opin­ signed by the chief justice of the supreme ion through a survey.2 Second, if attor­ court, the presiding judge of the local neys report that in their experience court court, and the president of the local bar.4 reporters perform better than video re­ All attorneys were guaranteed confidenti­ cording on the central evaluation criteria ality. After approximately three weeks, (i.e., faithfulness of the record, system follow-up mailings were sent to attorneys reliability, record availability), then video who had not responded. Table 2.1 shows recording is not a viable approach. the number of mailings and the response The attorney survey was administered rates for each site. to 1,708 attorneys in five cities where video recording is being used-Louis­ Response Rate and ville, Vancouver, Raleigh, Pontiac, and Characteristics ofRespondents Kalamazoo. The survey included ques­ The overall survey response rate was tions on the type and length of experience 61 percent, and the response rate from of the attorneys, the frequency of their Louisville, where attorneys have the most court appearances, and the number of experience with video recording (it is times they had appeared in a video court­ installed in all 16 of the circuit courts), room. Specific information was sought was 67 percent. Figure 2.1 illustrates the about the amount of experience the law­ distribution of responses for each site. yers had with the appellate process (in One third of the responses are from Lou­ general and with videotape) and with isville attorneys. computer-aided transcription. The set of Nearly all of the attorneys surveyed evaluative questions addressed system appeared in court during the past year, and reliability; availability of records; how over 80 percent of them appeared in court lawyers have used videotape; faithfulness many times during the year, as Table 2.2 of the record; advantages and disadvan­ shows. tages of video recording; and overall atti­ Not so many had appeared in video tude about video recording both before courtrooms, however: in four of the five and after experience with it. Some of the cities where attorneys were surveyed, questions asked lawyers to compare their video recording had been used for two experience and opinions about video re­ years or less, and in only one of several cording with their experience with court courtrooms in the courthouse. In Pontiac, reporters. A copy of the questionnaire is for example, there are 15 courtrooms, but found in Appendix A. only one video court; in Vancouver video In general, the attorney mailing lists recording is used in one of six court­ were designed to maximize t~'o; likelihood rooms, in Kalamazoo in one offive, and in that attorneys would have had experience Raleigh in one of four. A majority of the with the video system, and appellate respondents, therefore, have hadl'elatively experience in particular.3 The question- little experience appearing in a video

16 Methods and Evidence

TABLE 2.1 Attorney Survey Response Rates

Number of Number of Number of Percentage Surveys Valid Responses of Responses Site Mailed Mailings Received Received

Vancouver 256 244 141 58% Raleigh 287 282 167 59 louisville 501 500 336 67 Pontiac 388 386 232 60 Kalamazoo 299 296 160 54

Totals 1,731 1,708 1,036 61%

FIGURE 2.1 Percentage of the Total Survey Response Represented by Each Site

Kalamazoo Vancouver 15.5 13.6 N=160 N=141

Raleigh Pontiac 16.1 22.4 N=167 N=232

louisville 32.3 N=335

17 VIDEOTAPED TRIAL RECORDS

Table 2.2 Attorney Survey: How Often Did Responding Attorneys Appear in Court During the last Year Question

"During the Past Year, Approximately How Many Times Have You Appeared 'On the Record' in Any Proceeding in the Superior C6urt?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=o1016 N=139 N=166 N=325 N=231 N=157 None 6.2% 6.6% 5.4% 6.8% 0.4% 14.0% 1·4 11.7 10.9 18.7 14.5 2.2 13.4 5·12 18.5 21.2 34.9 18.2 8.2 14.6 13·24 20.1 23.4 27.7 21.5 14.3 14.6 25·52 21.7 11.7 10.8 23.4 33.3 21.0 53+ 21.9 26.3 2.4 15.7 41.6 22.3 courtroom. As Table 2.3 illustrates, 52 Another variable of special interest percent of the lawyers surveyed had ap­ for interpreting the survey results was peared only 1 to 12 times during the past whether attorneys had some experience year in a video courtroom. About 25 working with a videotape appeal. Table percent of the respondents reported at 2.4 shows that relatively few attorneys least 13 appearances, and a roughly equal outside Kentucky had this kind of experi­ percentage of respondents had never ence. Nineteen percent of all of the attor­ appeared in a video courtroom. In Louis­ neys (192) had used videotape at least ville, by contrast, video recording has once for an appeal, and most of them were been used in the court for more than four from LouisvilIe-42 percent of the re­ years, and by 1989 it was used in all 16 of spondents from Louisville had experi­ the circuit court courtrooms. ence with videotape appeals (142). Re­ Table 2.3 shows the difference be­ sponses from Louisville, therefore, repre­ tween the experience oflawyers in Louis­ sent opinions based on more relevant and ville and the lawyers in the other sites. In extensive experience.5 Louisville, over one-half of the attorneys who responded had appeared in a video Highlights o/the Survey Responses courtroom at least 13 times during the Highlights of the survey responses past year, and 89 percent had some expe­ where attorneys evaluate video recording rience with video recording. are shown in Tables 2.5 through 2.10 In

18 Methods and Evidence

Table 2.3 Attorney Survey: How Often Did Responding Attorneys Appear in Video Courtrooms During the Past Year

Question

"Durlng the Past Year, Approximately How Many Times Have You Appeared in the 'Video Courtroom' in the Superior Court?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=1,017 N=139 N=164 N=327 N=229 N=158 None 24.7% 25.2% 42.1% 11.0% 28.8% 28.5% 1-4 30.1 39.6 42.7 16.5 33.6 31.6 5-12 21.6 25.9 12.2 19.9 27.9 22.2 13-24 10.0 4.3 3.0 18.3 7.0 9.S 25-52 8.4 3.6 21.1 1.3 5.1 53+ 5.2 1.4 13.1 1.3 :U

Table 2.4 Attorney Survey: Number and Percentage of Attorneys Who Used Videotape to Work an Appeal During the Past Year

All Cases Vancouver Raleigh Louisviile Pontiac· Kalamazoo"

Number 192 17 13- 142 13 7 Percentage 19 12 8 42 6 4

.. In Michigan, transcripts made from videotapes are required for all appeals.

answer to questions related to faithfulness advantages than disadvantages are in the of records (Table 2.5), reliability (Tables majority, and only 14 percent believe that 2.6-2.7), and record availability (Table the disadvantages outweigh the advan­ 2.7), attorneys' responses about video tages (Table 2.8). In terms of overall recording compare favorably to their re­ attitude, roughly equal numbers of attor­ sponses about court reporters. Attorneys neys are positive (43 percent) or neutral who believe video recording has more (41 percent) about video recording, while

19 VIDEOTAPED TRIAL RECORDS

Table 2.5 Attorney Survey: Opinions About Faithfulness of Court Reporter and Videotape Records Question itA Court Reporter Makes A More Faithful Original Record than Does Videotape?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=913 N=113 N=147 N=306 N=213 N=134 Agree 24.7% 22.1% 19.0% 32.3% 19.3% 23.8% Disagree 75.4 77.9 80.9 67.7 80.8 76.1

only 15 percent have a negative attitude recording after they have had experi­ (Table 2.9). ence with it rather than a negative Other highlights of the survey analy­ change in attitude (Table 2.10). sis include: • About one-half ofall respondents agree • Place of practice (except Louisville), that the length of time it takes to review age of the attorney, years of practice, videotapes offsets other special bene­ type of practice, and experience with fits of video recording; in Louisville, CAT did not appear to be related to where attorneys have more experience whether attorneys were positive or with review of videotapes, 63 percent negative about video recording.6 hold this view (see Question 22, Ap­ pendix Bl). • The more experience attorneys had with video recording, the less likely • Opinions about whether video record­ they were to be "neutral" in their opin­ ing "improves the quality oflitigation" ions. (See Appendix B2, where re­ are evenly divided, and this does not sponses of attorneys who have used vary by location (see Question 23, video recording to work on an appeal Appendix Bl). are compared with attorneys who have not. Also compare Louisville attor­ Charts displaying survey results for neys' responses to those of attorneys in each question and for each site are pre­ other sites in Appendix Bl.) sented in Appendix B 1. Appendix B2 compares the responses of attorneys who • Many more attorneys report a positive have worked with videotape on appeal change in their attitudes about video with those who have not.

20 Methods and Evidence

Table 2.6 Attorney Survey: Opinions About Dependability of Court Reporter and Video Recording Methods

Question "A Court Reporter is More Dependable than Video Equipnlent?" All Cases Vancouver Raleigh louisville Pontiac Kalamazoo

N=913 N=117 N=148 N=307 N=208 N=133 Agree 41.1% 35.1% 44.6% 42.0% 41.4% 39.9% Disagree 58.9 64.9 55.9 58,0 58.6 60.1

Table 2.7 Attorney Survey: Responses of Louisville Attorneys to Questions Comparing Video Recording and Court Reporters on the Criteria of Reliability of the Method and Availability of the Record

Question "How Often Has a Proceeding Been Delayed or Has a Proceeding Been Interrupted Because of a ... " Never Rarely Occ;asionally Frequently

Video Equipment Problem 47% 38 14 (N=300) Court Reporter Problem 31% 49 18 2 (N=314)

Question "How Often Has a Record You Wanted Not Been Available When It Was Supposed to Be?" Never Rarely Occasionally Frequently

Videotape 72% 19 7 2 (N=296) Court Reporter Transcript 19% 39 31 12 (N=214) Note: Responses of louisville attorneys are shown In this table because the attorneys have worked as much with video recording as with traditional court reporting. Responses of attorneys from other sites are similar but tend to be more favorable to video recording.

21 VIDEOTAPED TRIAL RECORDS

Attorneys were invited to include frequently made and what issues might be their own comments on the survey forms investigated more fully in the interviews. (Question 27). There were 370 comments By far, the most frequent issue mentioned returned, and these were examined to in comments was the difficulty of work­ determine what observations were most ing with videotapes on review.7

Table 2.8 Attorney Survey: Opinions About Advantages Versus Disadvantages of Video R~cording

Questlon "Considering Everything, I Think Making a Video Record of Court Proceedings ... "

All Cases Van(.ouver Raleigh louisville Pontiac Kalamazoo

N=95'1 N=127 N=150 N=310 N=224 N=140 Has More Advantages than Disadvantages 55.1% 53.5% 58.0% 53.2% 54.0% 59.3% Has as Many Disadvantages as Advantages 30.8 29.9 34.0 26.1 35.3 31.4 Has More Disadvantages than Advantages 14.1 16.6 8.0 20.7 10.7 9,3

Table 2.9 Attorney Survey: Overali Attitude of Attorneys After Experience with Video Recording

Questlon HNowThat the System Has Been in Place for Some TIme, What IsYour Overall Attitude?"

All Cases Vancouver Raleigh louisville Pontiac Kalamazoo

N=950 N=129 N=146 N=309 N=223 N=143 Negative 15.3% 14.8% 7.6% 26.2% 9.8% 8.4% Neutral 41.4 5004 50.7 24.9 49.3 46.9 Positive 43.3 34.8 41.7 48.9 40.9 44.8

22 Methods and Evidence

Table 2.10 Attorney Survey: Change in Attorney Attitudes After Experience With Video Recording 1<

Vancouver Raleigh louisville Pontiac Kalamazoo

Negative Shift 10.5% 12.7% 21.2% 6.8% 5.7% ' No Change 40.3 54.2 31.8 55.4 43.3 POSitive Shift 49.2 33.1 47.1 37.9 51.0

.~ Table is derived by comparing each attomey's response to Question number 25 and Question number 26. (See Appendix B1.)

Interviews to) 9 of the 14 appellate judges, 8 trial judges, and 14 lawyers who specialize in Interviews with over 100 individuals appeals. There were more interviews were conducted during the study by tele­ conducted in Kentucky than in the other phone and in person when visits were states (because of Kentucky's more ex­ made to the study sites. The interviews tensive experience), but responses from explored the experience judges and law­ lawyers and judges in other states were yers had with video recording, and their similar to those in Kentucky. (This wa;:; attitudes about it, in more depth than the also true for the attorney survey responses.) survey could prov~de. The interview used The judges and attorneys interviewed a set of open-ended questions that varied all shared the opinion that the major dis­ somewhat depending on whether the per­ advantage of videotape is that it is not son being interviewed was a lawyer, a easy to review. Some appellate attorneys trial judge, or an appellate judge. In all the made plain that they would do away with interviews, the judges and lawyers were video recording for that reason alone, asked to distinguish between appellate despite any other advantages itmighthave. court and trial court experience with video With few exceptions, video recording was recording and to discuss the advantages seen to have advantages for trial court and disadvantages of each. purposes, was complained about as slow Interview appointments with lawyers and frustrating to work with on appeal, were arranged either by court personnel was praised for capturing details that are or, in the case of Louisville, by officials in not included in narrative transcripts, and the bar association. A requirement for the was reported to have improved in quality selection of attorneys to interview was since the original prototype systems were that they have some experience working introduced in Kentucky. with videotape in an appeal. Interviews in Few appellate attorneys who were Kentucky included (but were not limited interviewed were aware that using hi-

23 VIDEOTAPED TRIAL RECORDS fidelity playback equipment made a dif­ videotapes recorded in the study sites. ference in the quality of the sound, and Each participant was assigned to a three­ fewer still had used hi-fidelity equipment person panel that reviewed the same taped when reviewing videotapes. Only one proceeding. Two of the panelists used appellate attorney had used the kind of copies made flOm an original recording playback equipment described in Chapter (with some loss in quality of sound and 1 that is recommended for appellate re­ image); a third panelist was sent an origi­ view, and most were unaware that special nal recording. The panelists were asked equipment was available. to watch the tapes and complete an evalu­ In summary, interview results were ation questionnaire that focused on video­ consistent with the attorney survey re­ tape quality. sults, but disclosed more fully the extent The videotape samples included and strength of dissatisfaction about criminal and civil matters and one domes­ working with videotape on review and tic relations trial. Tapes were chosen by some of the reasons for that dissatisfac­ project stafffrom court records (tape logs) tion. One reason attorneys have such a made during the month of February 1989. negative opinion about videotape is that The tapes were not randomly chosen; an they lack information about what kind of effort was made to choose recordings that equipment is available to improve the included trials, with a preference for trials quality of the sound during playback and that were concluded in one day. None of to reduce the time it takes them to review the tapes were seen before their selection, videotapes. nor were they screened in any way by employees in the court. Twenty-five of Review of Sample Videotapes the volunteers completed the evaluation. by Judges and Lawyers Fourteen appellate judges, four appellate lawyers, and seven trialjudges responded. The faithfulness of videotapes is an Because the number of responses is evaluation criterion of special importance. small, the data are not summarized statis­ If judges and lawyers do not find that the tically. Tables showing all of the re­ quality of the videotape recording is ade­ sponses are included in Appendix C, to­ quate for purposes of appellate review, gether with a list of the volunteers who then on that basis alone video recording participated. The results are consistent would not be a viable alternative to tradi­ with those of the attorney survey and the tional court reporting. In order to look interviews. The majority of respondents more closely at this criterion, and to sup­ concluded the exercise with a positive or plement information obtained from the strongly positive attitude about videotape attorney survey and the interviews, 30 (14 of 25); disagreed that court reporters volunteer appellate judges, trial judges, usually make a more faithful record than and lawyers from several states were sent the videotape they watched (16 of 25);

24 Methods and Evidence and believed that the record represented were not asked whether they would have by the videotape they watched met or preferred that their courts increase the use exceeded their idea of a minimum stan­ of CAT, or otherwis~ improve the man·· dard (20 of 25). agement of traditional court reporting, rather than implement video recording. Limitations of the Study Third, sources for survey participants Method and Cautions About varied among the five sites, and our meth­ Interpretation ods for selecting lawyers in each site were not entirely random. Departures from There are some limits to how far one random selection were made, however, can generalize from the evidence gath­ only when made necessary by the nature ered in this study. The conc!usion that of the mailing lists available or to stratify video recording is a viable alternative to the samples in favor of attorneys who traditional reporting is a general. one that were experienced in video cOUl1rooms. may not apply to all courts, Finally, the evaluation of sample There are four reasons for court lead­ videotapes by the judges and lawyers was ers to exercise discretion about whether completed for only 10 different tapes and the project study findings would apply in by a relatively small number of people their court. First, the opinions of judges (25). Although the tapes and the review­ and lawyers in the six cities are notneces­ ers were selected without any conscious sarily representative of lawyers gener­ bias, thcprocess was notrandomnor were ally. Video recording was implemented the numbers large enough to claim gen­ in these cities to answer problems that had eral representati veness for either the tapes been experienced with traditional court or the volunteers. reporting. The courts adopting video recording on an experimental basis were Summary those assumed at the outset to have a good chance of success. Where those condi­ The evidence relied on most heavily tions are not found, the assessment by the for the conclusions drawn from this study local bar and judges could be different. In are the opinions of large numbers of law­ short, the study did not experimentally yers and judges who have experience with compare attorneys' and judges' attitudes video recording and other forms of court in sites where video recording has not reporting in six cities in four states. 9 Since been considered, or has been considered court reporters typically make the record and rejected, with sites where video re­ of proceedings in trial courts, the court cording has been implemented.s reporter method has established the stan­ Second, there were questions that dards against which other forms of court could have been asked on the survey that reporting must measure up. For this rea­ were not asked. For example, lawyers son,judge and lawyer opinions about video

25 VIDEOTAPED TRIAL RECORDS recording were sometimes compared to • Most judges and lawyers in the study their opinions about court reporting. Some sites have a favorable opinion about characteristics of the study method that video recording. limit how much one can generalize from the study findings reported here have been • Th~ major disadvantage of video re­ noted by way of cautions. cording as a record is that it is difficult The attorney survey, the interviews, to review. and the reviews of videotape by lawyers and judges all point to the same major Chapter 3 turns to the sites and de­ conclusions: scribes the context in which video record­ ing originated and has been studied. • Videotape is a viable alternative to Chapter 4 returns to the 10 evaluation traditional court reporting. criteria and examines the findings about each one.

26 Notes

1. See, e.g., Greenwood and Dodge, are available from the project director on 1976 p. 21-23; Steelman, 1988 p. 14. request. 2. It is important to note that research of 4. In North Carolina, the state court the Federal Judicial Center (FJC) to compara­ administrator signed the cover letter. tively evaluate stenographic and audiotape 5. It is also known that the prototype methods ofreporting used experimental meth­ recording equipment in Louisville was gener­ ods to directly compare accuracy and timeli­ ally inferior to that used in other sites, that ness of transcripts produced by official court attorneys usually look at copies of tapes, and reporters and by transcription services work­ that rarely do attorneys review tapes on play­ ing from audiotapes. Accuracy was evaluated back equipment that is optimal. It follows, by comparing matched pairs of transcript pages therefore, that the Louisville attorneys' re­ with each other and with audio recordings. sponses may not be reliable predictors of re­ The objective was to arrive at error rates that sponses of experienced attorneys who have could be analyzed and compared statistically. access to betterrecordings and playback equip­ Thousands of pages of transcripts were col­ ment. lected and reviewed, and the assistance of 6. Statistical correlations between the many law-trained professionals and profes­ profile of attorneys' experience (e.g., age, sional editors was required. The process of type of practice, CAT experience) and atti­ identifying and counting errors reqlr;red the tudes toward video recording were found to be defmition of errors and types of discrepancies weak, and, therefore, are not displayed here. and consistent application of them to pages of 7. All of the comments have been com­ transcript. Discussion of the FJC approach is piled. They are grouped by si te and by whether beyond the scope of this report, but it is care­ the overall attitude of the attorney was posi­ funy described in Greenwood et a1., 1983. tive, neutral, or negative about video record­ Some of its problems have been reported in ing. Because of the length of the document two critiques: see Coopers and Lybrand, that includes the comments, they are not in­ 1983; Resource Planning Corporation, 1983. cluded. Interested parties may obtain them A detailed account of some of the basic lin­ from the project director. guistic analysis problems and contextual inter­ 8. See Chapter 5 for additional discus­ pretation of what counts as an error, are found sion of the reasons why court leaders should in Walker, "From Oral to Written: The 'Ver­ exercise caution in generalizing the findings batim' Transcription of Legal Proceedings," of this study to their own court. PhD. Dissertation, Georgetown University, 9. Only five cities were included in the 1985. attorney survey, but interviews were conducted 3. Details about how the lists were with judges and lawyers in the small city of compiled are not included in this report. They Richmond, Kentucky.

27 The Project Study Sites: Four States and Six Courts I

The Project Study Sites: Four States and Six Courts

hiS chapter examines the four domestic relations cases. In Raleigh, the states and the six courts that were courtrooms in the general jurisdiction court ~the focus of the study. The courts are dedicated to either civil or criminal were in Louisville and Richmond, Ken­ cases. The video courtroom is a civil tucky; Kalamazoo and Pontiac, Michi­ court. gan; Raleigh, North Carolina; and Van­ Jurisdiction of the courts in Ken­ couver, Washington. The examination tucky, Michigan, and Washington differ covers the jurisdiction and organization in some details, and the major difference of the trial courts; state court organiza­ in civil case jurisdiction between those tion; the agency behind implementation three states and North Carolina is that of video recording in the study sites; domestic relations matters are not heard appellate court jurisdiction and structure; in the North Carolina Superior Court. and the nature of the court-reporting sys­ (Domestic matters represent roughly one­ tem in the sites. third of the entire caseload in courts where The sites are those where video re­ they are heard.) Table 3.1 summarizes cording has been used for the longest rime the major jurisdictional characteristics in in the United States. The comparison each of the courts. shows a diversity of state and local con­ For tort, contract, and real property texts within which video recording has rights cases, Kentucky differs from Michi­ begun and become well established. gan and North Carolina in that it has a lower limit on the value of cases: $2,500 Trial Courts: Jurisdiction, as opposed to $10,000. Jurisdiction for Caseload, and Organization civil cases in Washington's superior courts has no lower statutory limit, and jurisdic­ The courts in the study sites in Ken­ tion for cases less than $10,000 is shared tucky, Michigan, and Washington are with the limited jurisdiction (district) court. courts of general jurisdiction where the As a practical matter, however, few of the judges hear a mix of civil, criminal, and civil cases in Washington that could be

31 VIDEOTAPED TRIAL RECORDS

Table 3.1 Summary of Subject Matter Jurisdiction for Trial Courts in the Study Tort Contract Divorce Real Custody Property Support Estate Adoption Paternity

Kentucky Exclusive Exclusive Exclusive Exclusive No >$2,500 $2,500 Michigan Exclusive Exclusive No No Shared >$10,000 North Exclusive No Exclusive Exclusive No Carolina >$10,000

Washington Shared 1 Exclusive Exclusive Exclusive Exclusive <$10,000 Exclusive >$10,000

Mental Civil Agency Felony Misdemeanor Health Appeals2 Appeals O'I"1linaI3 DUI4

Kentucky No Exclusive Exclusive Exclusive Shared Michigan No Exclusive Shared Exclusive Shared North Carolina Exclusive No Exclusive N/A N/A Washington Exclusive Exclusive Exclusive Exclusive Shared

1 Exclusive jurisdiction of all real property cases.

2 Appeals from cases decided in a lower trial court.

J Also includes appeals of misdemeanor cases decided in a lower trial court. " "OUI" refers to driving under the Influence of alcohol.

heard in district court are filed in the Table 3.2 summarizes official court superior court. Adoption and estate cases names; location, size, and workload of the are not heard in the circuit court in Michi­ courts; and the number of video court­ gan' but are heard in the gcneraljurisdic­ rooms. The sites vary substantially in tion courts in the other three states. Crimi­ population, number of judges, number of nal case jurisdiction is virtually identical video recording systems used, and in Kentucky, Michigan, and Washington. caseload. The caseloads of the courts

32 The Project Study Sites: Four States and Six Courts

Table 3.2 location, Population, Number of Judges, Caseload, and Workload of the Trial Courts in the Study Sites

Vancouver Kalamazoo Pontiac louisville Richmond Raleigh

Court Superior 9th 6th 30th 25th 10th Court Judicial Judicial Circuit Circuit Judicial for Clark Circuit Circuit Court Court District County Court Court Court County Clark Kalamazoo Oakland Jefferson Madison Wake County Population (1986) 211,300 217,700 1,025,800 680,700 83,900 365,500 Number of Judges 6 5 14 16 2 4 Civil 5,113' 991 10,816 2,305 N/A 1,632 Criminal 1,517 1,337 6,649 6,724 N/A Domestic 2,405 9,125 4,794 N/A Total 6,630 4,733 26,590 13,823 1,632 Judges per 100,000 Population 2.84 2.30 1.36 2.35 1.552 1.09 Cases per Judge 1,326 946 1,899 864 N/A 8163

J Includes domestic relations cases. 2 The number of judges per 100,000 population shown in the tabie takes into account the population of Clark County, which is also in the 25th circuit 3 Only two of the four judges in Wake County hear civil cases. The number of cases per judge shown in the table takes this into account.

vary both in total numbers and in cases per In the courts in Kentucky, Michigan, judge (workload). For example, Pontiac and Washington (where each judge hears reports a caseload per judge that is much a mix of criminal, civil, domestic rela­ higher than the other courts. There are tions, and other types of cases), the pro­ roughly twice as many judges per 100,000 ceedings recorded in the courtrooms in­ population in Vancouver, Kalamazoo, clude both short and long matters-mo­ Louisville, and Richmond than in Pontiac tions, arraignments, sentencings, agreed and Raleigh. dissolutions, and trials, for example. The

33 VIDEOTAPED TRIAL RECORDS courtrooms are permanently assigned to in the study) where seniority determines one judge, and video recording was in­ who is the top administrative judge. stalled in each when the judge requested There are trial court administrators or agreed to the installation. The context in all of the sites (except Madison County, in Raleigh is quite different. Judges rotate Kentucky) who are responsible for over­ through various districts in North Caro­ seeing the ministerial functions of the lina, a.nd the courtroom, therefore, is not courts, but the involvement of the trial permanently assigned to a single judge. court administrator in working with the Because of the organizational and juris­ top administrative judges on matters of dictional characteristics of the court in court appears to vary. Raleigh, no criminal or domestic matters are videotaped in North Carolina, as they State Judicial are in the five other courts. Finally, the System Administration video courtroom in Raleigh is used by the judge who hears the daily calendar call Two of the states have highly cen­ (this is a review of the day's docket of tralized statewide administration, with cases and assignment of cases for tdal). state funding of the courts; the other two The leadership structure-selection states have decentralized administration, and tenure of chief judges-also varies with substantially less state funding. In among the courts. In Washington, there is Kentucky and North Carolina, the state no uniform procedure across the state that funds all or nearly all of the judiciary's governs the selection of judges to super­ expenses, except real estate. Court ad­ vise the operation of the superior courts. ministrative personnel and support staff In Vancouver, the responsibilities of the (e.g., trial court administrators, clerks, presiding judge are assumed by the most court reporters) in Kentucky and North senior judge. In North Carolina, a presid­ Carolina are employees of the state and ing judge of a district is determined by are subject to administrative direction from place of residence and by which judge has the office of the state court administrator. the most seniority in the district. In Michi­ The centralized structure in Kentucky gan and Kentucky, supreme court rules provided a favorable setting in which state require the election of a chief judge by the officials could institutionalize video re­ other judges in each circuit to serve a two­ cording. Kentucky also enjoyed strong year term. The rules require that the chief interest in video recording by some trial judge be chosen for "administrative abil­ judges and active support by the chief ity," not seniority, and the selection is justice. In Kentucky, slate officials moved ratified by the chief justice. Thus, there as quickly as possible from experimenta­ are two states (four courts in the study) tion to institutionalization. In four years, where the top administrative judge is the commonwealth expanded the use of elected by other judges based on adminis­ video recording from 1 to 32 courtrooms, trative ability, and two states (two courts which accounts for 40 percent of the state-

34 The Project Study Sites: Four States and Six Courts wide general jurisdiction court case fil­ involvement in promoting and oversee­ ings. This level of support from the top ing the systems is very high. In the other was not found in North Carolina, where states, the role of the administrative office the state's top judicial officials are mov­ as agent behind the video recording initia­ ing more cautiously. tives is less apparent, but has nevertheless In Washington, the state funds ap­ been essential. proximately one-half of the salaries for judges; in Michigan, the state funds 90 Agency Behind Implementa­ percent of judges' salaries with local tion of Video Recording funding used for the remaining costs of the judicial system. l Paralleling the fund­ In Kentucky, video recording began ing structure, there is no centralized con­ at the request of a trial court judge, James trol of the employees of the local courts in Chenault. This action was supported by Washington and Michigan. The adminis­ the chief justice and the state court admin­ trative offices of the courts in Michigan istrator, who were already favorably dis­ and Washington have clearly defined posed to court-reporting methods that do responsibilities for which the cooperation not require employment of court report­ of the local courts is required (e.g., the ers. The state court administrator in administration of the states' caseload Kentucky was primarily responsible for reporting systems), but generally the in­ institutionalizing video recording in the volvement of the state administrative commonwealth, with strong support from office in the operational affairs of the the chief justice. Trial and appellate court local courts is in an informational, educa­ judges who were vocal advocates of vide 0 tional, and advisory capacity. In program recording also contributed to its growth areas where the state assists with funding and acceptance throughout the state. support-like video recording-the In North Carolina, an incentive to administrative offices in Michigan and experiment with video recording was Washington have a limited regulatory or created when the legislature called upon supervisory role. the court's leadership to examine alterna­ In all of the states, implementing tives to traditional reporting methods. In video recording required special orders to response, the administrative office of the authorize exceptions to the rules of appel­ courts proposed (among other things) a late procedure (and in some cases to rules video recording experiment, which was governing procedure in the trial courts). agreed to by the supreme court. North State administrative personnel in all the Carolina, unlike the other three states, states, therefore, have had some involve­ lacked a trial court judge urging the use of ment in the procedural aspects of imple­ video recording and a higher court judge menting video recording, through the encouraging the trial courts to experiment process of drafting special rules or ena­ with it. It was the trial court administrator bling orders. In Kentucky, the state's in Raleigh who agreed to conduct the

35 VIDEOTAPED TRIAL RECORDS experiment, in collaboration with the staff tor-she proposed the idea to a receptive of the administrative office of the courts. trial court judge. The administrative of­ The impetus behind the first use of fice of the courts in Michigan has sup­ video recording in Vancouver came from ported efforts to experiment with video the trial court judge himself, but the statt: recording and took early charge of a for­ court administrator had encouraged inter­ mal process to obtain the necessary ap­ est in video recording among the state's proval and accompanying procedural rules judges by providing information about it from the supreme court. Its first step was through judicial education programs. to obtain a consultant's assessment of the Once video recording was under way, a feasibility of using videotape in the courts staff member of the office of the adminis­ in Kalamazoo and Pontiac.2 A task force trator for the courts (OAC) was assigned was then created by the state court admin­ to oversee the experiment. Early coordi­ istrator in Michigan to assist in the evalu­ nation of the program and planning among ation of the experiment..3 The eval uation the trial court judge, the trial court clerk, was favorable, and the use of video re­ the court of appeals, and the local bar did cording in Michigan, as in Washington, not precede the change to video recording has increased rapidly. Ten courts are in Vancouver, and necessary adjustments expected to use video recording by 1990. to procedure for videotape appeals were North Carolina, alone among the four not made. Neither the trial court clerk nor states, continues to operate video record­ the clerk of court of appeals, for example, ing as an experiment in just one court. were aware thata videotape appeal needed to be processed differently than other The Appellate Context appeals. The consequence was proce­ in the Project Study Sites dural confusion and delay, which caused unfavorable pUblicity when the frrstvideo­ Kentucky, Michigan, North Caro­ tape appeal was filed (a criminal appeal lina, and Washington are all states with an with a court-appointed lawyer). Subse­ intermediate court of appeal (IAC) and a quently, a new OAC staff member took court of last resort, the supreme court. responsibility for communication and From a practical standpoint,judgments of procedural coordination among the trial the trial courts-whether final or inter­ and appellate courts and the bar and of­ locutory-are reviewed first in the IACs fered a higher level of support for the of the states.4 In Michigan, the supreme program from the office of the adminis­ court's jurisdiction is exclusively discre­ trator for the courts. The use of video tionary. In Kentucky, North Carolina, recording in Washington has expanded and Washington, appeals from the death since 1987 from one to eight courtrooms. penalty are made directly to the supreme In Kalamazoo, the chief judge of the court. In North Carolina sentences to life court was the moving party behind the use imprisonment, and in Kentucky sentences of video recording, while in Pontiac, the to more than 20 years, are also directly trial court administrator was the initia- appealed to the supreme court. Other

36 The Project Study Sites; Four States and Six Courts matters where the supreme courts have offices. In the other states, the court sits in mandatory jurisdiction include certain specifically designated locations, except executive agency appeals (North Caro­ in unusual circumstances. Offices are in lina) and matters of constitutional law, the district locations where the court nor­ conflict between state statutes and actions mally sits to hear cases. of state officials (Washington). This In two of the states, Kentucky and chapter, therefore, examines the charac­ Michigan, the presiding judge of the court teristics of the intermediate courts of of appeals is elected by the other judges appeal in the four states, since these are for four- and three-year terms, respec­ the courts that resolve the vast majority of tively. In North Carolina, the chief judge appeals from the trial courts. is appointed by the chief justice of the su­ Each of the lACs in the states is preme court and serves at his or her pleas­ somewhat unique in organizational struc­ ure. In Washington, the position of pre­ ture, resources and jurisdiction, and in the siding judge rotates. rules and procedures they follow for tak­ In Washington, there are now trial ing appeals from video recorded cases. courts that use video recording within For videotape appeals, Washington gen­ each of three geographic-based divisions erally follows the procedures established of the court of appeals. Each division has in Kentucky (I.e., a presumption. that the a chief judge and the autonomy to estab­ videotape will serve as the record), but lish its own procedures. Consequently, Michigan requires that the videotape be each division has a different character and transcribed for use on appeal. North is organized somewhat differently. Carolina's rules differ from the other states in that the choice of the form of the record Jurisdiction is at the discretion of the attorneys. The In Michigan and North Carolina, rules relating to the use of videotape rec­ some final judgments of limited jurisdic­ ords for appellate review are summarized tion courts may be appealed to the court of for each state in Figure 3.1. appeals directly, but in Kentucky and Washington all judgments of limited ju­ Organization risdiction courts are reviewed first in the Court ofappeals judges are elected in general jurisdiction trial court. Interlocu­ all feur states. Terms of office are six tory orders entered in the generaljurisdic­ years in Michigan and Washington, eight tion court in all four states are reviewed by years in Kentucky and North Carolina. In the court of appeals. All of the appellate each of the states, the judges sit in panels courts hear appeals from executive agency of three to decide cases. Kentucky's judges administrative hearing orders. have offices in their hometowns within a district from which they were elected, but Caseload and Workload they sit to hear cases in various locations Table 3.3 summarizes selected char­ throughout the state. The equipment for acteristics of the IACs in each of the states. review of videotapes is located in their Using 1988 statewide filings as a meas-

37 VIDEOTAPED TRIAL RECORDS

Figure 3.1 Summary of Rules Governing the Use of Videotape on Appeal In the Four States

Kentutky Tape is the record on appeal. Limited "Order Establishing number of pages may be transcribed Procedures for Using and attached as an evidentiary appendix Videotape Equipment to a brief (50 and 25 respectively, for the to Record Court Proceedings" supreme court and court of appeals.) Adopted October 28, 1986

Appellate court may request that a transcript be made of any portion of the record, arrangements to be made by the state administrative office of the courts, costs paid by the parties. (This option is not used by the court in Kentucky.)

Michigan Transcript of proceedings is reqUired, "Videotaped Record but the videotape is also forwarded if an of Proceedings appeal is taken. Administrative Order 1989·2" A court reporter or reporter must certify that the transcript represents the "complete, true and correct rendition of the videotape."

North Carolina Tapes certified by the clerk of court "Rules to Govern the "may" serve as a substitute for a Use of Video Court "verbatim typed transcript" at counsel's Reporting System During discretion. Test/Evaluation Period" Signed February 3, 1988

Washington Videotape serves as record on "Establishment of Temporary review-rules generally follow Kentucky. Procedures for Experimental Use of Videotape Equipment to Record Court Proceedings in Clark County" No. 257 00-A-400 Order (July 2, 1987)

38 The Project Study Sites: Four States and Six Courts

Table 3.3 Selected Characteristics of the Intermediate Courts of Appeal in the Study Sites, 1987

Kentucky Michigan North Carolina Washington

Mandatory Cases Filed 2,691 8,186 1,265 3,238 Disposed 2,304 7,502 1,310 3,870 Filed per 100,000 Population 72 89 20 71 Number of Judges 14 18 12 16 Number of lawyer Support Personnel 22 84 28 32

Filed per Judge 192 455 105 202 Filed per Lawyer Support Personnel 122 98 45 101 Disposition by Opinion' 1,432 4,179 1,209 1,645 Per Judge 103 232 101 103 Per lawyer Support Personnel 65 50 43 51 Percent Published Opinions2 10% 33% "most"4 45% Published Opinions per Judge3 10 77 81 46 Publication Decision Court's Court's COUit's Division Discretion Discretion Discretion Discretion

1 "Disposition by Opinion" generally includes "per curiam," "memo," and "order opinions" in each state.

2 The source of this statistic is Kramer, Wilford J., Comparative Appellate Court Structure and Procedures in the United States (1983).

3 The data are derived by applying Kramer's percentage to the number of dispositions by opinion, and dividing by the number of judges.

4 For North Carolina, "most" was calculated at 80 percent

Source: State Court Caseload Statistics: Annual Report, 1987 (NC$C)

39 VIDEOTAPED TRIAL RECORDS ure, Michigan has the highest absolute and to why a procedure that is acceptable caseload (81,196) and per capita caseload in one court is not acceptable in another. (89 cases per 100,000 population) of the Examples of such differences include the four states. The caseloads per 100,000 percentage of the workload that consists population in Washington and Kentucky of appeals of sentencing determinations are nearly identical (72, 71), but North of trial judges, or of the so-called Anders Carolina has a much smaller caseload brief cases. Sentence reviews, for ex­ than the other states (20 cases per 100,000 ample, would require very little use of the population.) The number of judges in the trial court record, while Anders cases courts varies from 12 to 18, and the number would require substantial review.5 Al­ oflawyers (staff attorneys and law clerks) though the frequency of these cases in the who support the judges ranges from 84 in court's caseload and the procedures gov­ Michigan (more than 4 lawyers perjudge) erning them are possible variations among to 22 in Kentucky (less than 2 lawyers per the lACs that are relevant to this study, no judge.) Total dispositions and disposi­ data are available to examine thecaseloads tions per judge vary in a fashion similar to at this level of detail in the study sites. filings. The percentage of published opin­ The question of interest when exam­ ions shown in Table 3.3 is a workload ining the caseload and procedure of the indicator that perhaps suggests a relevant lACs in the study sites is whether there difference between Kentucky and the other appears to be anything about the appellate states. Kentucky stands out from other courts in those states that would make courts with an exceptionally low rate of them a more favorable environment for published opinions (10 percent), while the introduction of video recording than North Carolina publishes "most" of its in other states. More to the point is the opinions.6 Michigan and Washington question of whether something about the publish opinions at a rate that is three to commonwealth of Kentucky made intro­ four times greater than Kentucky: 33 duction of videotape as the record on percent in Michigan and 45 percent in appeal more feasible than in Michigan, Washington. If these percentages are where videotapes are transcribed for applied to the number of cases disposed appeal. (In Washington and North Caro­ by opinion, it appears that appellate judges lina, there has been no experience with in Kentucky are responsible for signifi­ videotape appeals, so it remains an open cantly fewer decisions that are reasoned question whether the use of videotape for and polished for publication than are appeals will gain acceptance.) judges in the other states. Inferring that As Chapperand Hanson have pointed fewer published opinions relates posi­ out in recent research, there are important tively to more ready acceptance by appel­ differences in caseload composition late judges of the use of videotapes for among lACs that appear to have a relation­ appellate review is speCUlative, but a ship to differences in how they operate possible relationship is worth keeping in

40 The Project Study Sites: Four States and Six Courts

mind. Published opinions, presumably, Before the use of video recording presuppose a more thorough review and was begun in the first four experimental more frequent citations of the trial record. sites in Washillgton, the judges on the court of appeals agreed to review video­ Attitudes of the taped records on an experimental basis. It Appellate Judges appeared to be implicit in Washington's Interviews conducted with judges in approach to undertaking video recording the IACs, with state administrative offi­ that such consultation was a required, not cials, and with the clerk of the court of merely a desirable, condition of implem­ appeals in Kentucky suggest that the entation. support of a majority of appellate court Judges of the IACs in Washington judges are not required to introduce video and North Carolina had yet to work on any recording if the commitment to the sys­ appeals where a videotaped transcript was tem by the chief justice and the supreme needed to decide the case at the time the COllrt is strong. The majority of judges in study was conducted. (In Washington, the court of appeals in Kentucky accepted video recording has been used in Vancou­ but did not generally favor the use of verfor 18 months without having an appeal video recording for the first few years, that required reference to a videotaped although recently their opinions seem to record reach the court of appeals.) The have moved in a more positive direction. chief justice and the chief judge of one of They believed that the system saved money the divisions of the court of appeals in at the trial level and agreed that video Washington expressed the view that only recording made records available much experience would tell how the judges on sooner. They disliked having to work the court would react to using videotaped with the videotape for review, described it records. (They did report a mix of private as slow and frustrating, and would have opinion about it among their colleagues.) preferred a policy that permitted tran­ scription. They also complained of the The System of quality of the recordings during the early Court Reporting in the Sites years. With only one exception, however, they did not publicly oppose the policy Kentucky established by the chief justice. By the The court-reporting system in Ken­ latter part of 1989, the judges' reserva­ tucky stands out in contrast to the other tions about the quality of the recordings states. In Kentucky, salaries for court have been largely removed, and some of reporters were low, and the common­ their concerns about the difficulty of wealth's judicial leadership was trying to working with the videotape have abated reduce court reporter expenditures even due to the introduction of improvements further when video recording was begun. in the equipment that addressed both Court reporters in Kentucky earned concerns. $13,200-$20,484, which was below the

47 VIDEOTAPED TRIAL RECORDS norm nationwide.7 Moreover, an unusu­ certification process and to hold hearings alJ.y high percentage of reporters (about oh formal complaints made against court two-thirds) used manual shorthand in reporters. In Michigan, court reporter 1984, and only two reporters used com­ salaries appear to be equal to or above puter-aided transcription.s In fiscal year national averages, and reporters use a 1981-82 Kentucky experienced a revenue variety of modern techniques for court shortfall that required reduced expendi­ reporting, including computer-aided tran­ tures. In addition to routine measures like scription. hiring freezes for court reporters and other When video recording was intro­ court personnel, extraordinary measures duced in Kalamazoo and Pontiac, both were taken by the administrative office of courts had vacant court reporter positions. the courts. Court reporters were urged to In Kalamazoo, the court normally em­ delay submission of fee bills for pauper ployed five permanentcourt reporters (one transcripts, forexample.9 In the years that per judge), supplemented by free-lance followed, the administrative office of the reporters when necessary. When the video courts continued to search for ways to cut recording experiment began, the court back on expenditures related to court was experiencing a "tremendous backlog reporting. They pooled reporters (Louis­ in transcript production," and the chief ville), switched from salaried court re­ judge was employing temporary assistant porters to contract reporters (thus saving reporters for four- and five-week periods the costs associated with fringe benefits to attack the backlog. The court had also and payment for days when little bench been unable to fill a vacancy for one of the activity occurs in the court), and initiated permanent full-time reporter positions video recording in Richmond and Louis­ during this time. lO In Pontiac, each judge ville. While control of expenditures for has a permanently assigned court reporter, court reporting is a perennial theme in and the court traditionally employed two court-reporting management literature and roving reporters (one of whom is assigned an objective in other courts, none of the to visiting judges.) The court had two states studied have so agressively sought vacancies in these full-time reporter posi­ to reduce statewide costs of court report­ tions when the video recording project ing as has Kentucky. was undertaken. I I Kalamazoo and Pon­ tiac show expenditures for contract court Michigan reporters that are higher than those in the Michigan is unique among the four other sites. 12 states in that it has an established state­ In Kalamazoo, the court took active wide testing and certification program for control of the entire process of court re­ court reporters that existed before the porting when video recording began. video recording experiments were under­ Position descriptions and procedures were taken. The Court Reporting and Record­ thoroughly revised, and the court's ad­ ing Board of Review is appointed by the ministrative personnel became involved supreme court to oversee the testing and in monitoring transcript production. In

42 The Project Study Sites: Four States and Six Courts addition, the court did not reduce its chine stenograph methods, with a few complement of full-time reporters after reporters using manual and stenomask video recording was implemented. It was techniques. 13 able, instead, to use the court reporter The video recording experiment in position freed up by the video recording Raleigh was just one of several initiatives system to provide back-up for the other introduced by the administrative office of four reporters. Court reporters were re­ the courts in North Carolina to improve quired under the new procedures to file the efficiency and accountability of its monthly pending transcript reports that entire court-reporting system. Other steps show the number, order date, and due date that were taken included requiring report­ of all transcripts they are preparing. The ers to file transcript production reports, deputy court administrator is able to use creation of managing reporters, court these reports to keep track of the workload reporter testing and certification programs, of individual reporters. If a particular and expanded use of audio recording.14 reporter begins to fall behind, or is faced with a particularly long transcript, substi­ Washington tutions in assignments can be made to Reporters in Vancouver primarily use allow the court reporter to catch up. The machine stenographic techniques. Be­ effects of this initiative appear to have fore the installation of video recording, a been salutary-transcript production times court reporter was assigned permanently have decreased since the changes went to each judge. One of the court's six into effect in January 1988. (For a com­ judges, however, did not use a court re­ parison of transcript production time be­ porter, preferring instead to rely on an tween Kalamazoo and other sites, see audiotape recording system. (This is Figure 4.5.) unusual in courts of general jurisdiction.) Another judge employed a reporter who North Carolina used co~puter-aided transcription and was Court reporters in North Carolina, skilled enough to demonstrate real-time like Kentucky, are employees of the state. translation to groups of judges in Wash­ In Raleigh, the court used five reporters, ington. That reporter left the court in one of whom was a roving reporter; the 1989, and a replacement was not hired. remainder were assigned to courtrooms. Instead, the second video recording sys­ Since the court began using video record­ tem in Vancouver will be used in that ing, a reporter was freed from a perma­ courtroom beginning in January 1990. nent courtroom assignment, and there are now two roving reporters. Because judges Summary rotate through courts in their distrirts in North Carolina, there are no permanent Differences in jurisdiction and the relationships between judges and report­ types of cases heard in the video court­ ers. Most reporters outside of small rural rooms in the four states are apparent from jurisdictions in North Carolina use ma- the study, although only North Carolina

43 VIDEOTAPED TRIAL RECORDS restricts its use of video recording to civil of court reporting statewide, are particu­ cases (excluding domestic relations mat­ larly significant. These factors are impor­ ters). Elsewhere, video recording is used tant enough to deserve special considera­ for all of the major casetypes except juve­ tion in the context of implementation, the nile offenders and abused children. Only subject of Chapter 5. Otherwise, there is relatively minor differences are apparent a wide variety of circumstances surround­ in the appellate court jurisdiction among ing court reporting among the study sites, the states, but organizational characteris­ including a court reporter certification tics vary more noticeably. Kentucky dif­ program in Michigan and a courtroom in fers from the other states by having a very Vancouver where a judge who was used low percentage of published opinions, to a highly skilled CAT court reporter and it is suggested that this is a factor that converted to video recording when that might be relevant for determining whether reporter left the court. the use of videotape rather than transcript What emerges most clearly in the as the record on appeal will be more or review of all of the sites is that a willing less successful. trial court judge and a tolerant supreme The circumstances surrounding court court appears to be all that is required for reporting in Kentucky-the birthplace of video recording to be implemented. When video recording-are somewhat unique. strong support from the state's top judi­ The level of technical sophistication cial leaders is also present, the use of among court reporters, and high incen­ video recording may expand rapidly. tives in the commonwealth to reduce costs

44 Notes

1. National Center for State Courts, 8. Ibid. State Court Organization, 1987, Table 15. 9. Steelman, 1984 p. 23. 2. See Steelman, 1987, for the report 10. Steelman and Lowe, 1988 pp. 4-5. of the assessment. 11. Ibid. p. 8. 3. Steelman and Lowe, 1988 p. 2. 12. See Table 4.3 in Chapter 4. 4. Sources for jurisdictional informa­ 13. Conference of State Court Admin­ tion about the COLRs and the IACs in the istrators, 1984 p. 28. study sites are (1) the annual reports for the 14. Interview with Mr. Michael Unruh, states; (2) National Center for State Courts, Administrative Office of the Courts, North State COllrt Caseload Statistics: Annual Re­ Carolina. No study of what effects the new port, 1987; and (3) Shepard's Lawyer's Refer­ procedures may have had on transcript pro­ ence Manllal, 1988 Supplement. duction times in North Carolina had been 5. Chapper and Hanson, 1990. made when our study was in progress. 6. Kramer, 1983. 7. Conference of State Court Admin­ istrators, 1984 pp. 64-75.

45 /;;; ~~ :~. ~':'::'.-::;~~·'':T·'{ ::. ... ,:.;,~" ..::t.,: .. " :;\:=t,,"";;',:<~-, T,--t,',' ""Y1;'::;C-:::', tt;"fih~pter ~,

Assessment of Video Recording on Ten Evaluation Criteria Assessment of Video Recording on Ten Evaluation Criteria

en evaluation criteria relevant to encoding and decoding information. With court reporting organized the in­ video recording the encoded version of l1quiry into the viability of video re­ the record is the tape itself, which is made cording as a method of making trial court electronically and without human judg­ records. The criteria were adapted from ment. While the tape may contain all of those usedin previous researchandevalu­ the information about a court event, the ations of alternative methods of court information is inaccessible and useless reporting. 1 without a decoder-the video playback This chapter describes the study's equipment. When the videotape is played rmdings about video recording in terms of on suitable equipment, sounds and im­ each criterion. Discussions of some of the ages of the event itself are recreated. A criteria are relatively long (e.g., "Ex­ court reporter's encoded record requires pense") and others are brief(e.g., "Record human judgment. It exists on pieces of Preservation"). The order in which the paper (and perhaps also in the form of first five criteria are presented reflect their digital data on an electromagnetic tape if relative importance. Thereafter, no sig­ computer-aided transcription is used). It, nificance should be attached to the order too, is useless without a decoder, which in in which the criteria are discussed. this case is the human being who made the record. The decoded version of the record Faithfulness is a written narrative that describes the (Accuracy) of the Record original event. It has been twice filtered through the intelligent discrimination of F aithful-"true to the facts, to a standard the court reporter-first when the infor­ or to an original" mation is encoded in the shorthand notes -WEBSTER'S DICTIONARY taken in the courtroom and again when the shorthand notes are decoded into the tran­ Making a faithful record-whether script. The recreation of the event occurs by primarily electronic or primarily human in the imagination of a law-trained profes­ means--entails a complex process of sional reader who is aware that the court

49 VIDEOTAPED TRIAL RECORDS reporter has applied judgment and discre­ "objective" first-generation record that tion while making the record.2 can help settle the matter (unless the re­ When a written transcript is prepared porter has used an audiotape as a backup.) by a court reporter, the process of record Figure 4.1 illustrates the utility of having making is complete. The first usable form the tape backup.3 of the record in video recording-the playback of the tape-may go through Faithfulness v. Accuracy one more stage. The events recreated Evaluations of alternative techniques through the playback may also be reduced for court record making have traditionally to a narrative. This narrative is a second­ used accuracy (of the record and the tran­ generation, decoded form of the record script made from it) as a central evalu­ and is presented to the reader in the same ation criterion. Accuracy refers to the form as a court reporter' s transcript. Thus, legal concept of a verbatim record, and it a record created through video recording presupposes that what a court reporter may involve two distinct outputs and if it does is record word-for-word what was does, both of them must be faithful within said in court. Traditional evaluations that the limitations of their media. Thus, stud­ presupposed the word-for-word reporting ies of audiotape and videotape records concept sought to use statistical techniques may distinguish "tape accuracy" and to objectively assess record quality or "transcript accuracy." With videotape accuracy. In Management of Court Re­ and audiotape records, moreover, the tran­ porting Services, for example, Greenwood script may be verified by reference to the and Dodge speak of error rates expressed videotape. A court reporter's record does as percentages, and say that optimum is not allow such verification. In the event "100 percent accuracy." In later work of a disagreement about whether the court conducted at the Federal Judicial Center reporter's transcript is faithful, there is no by Michael Greenwood and others, this

Figure 4.1

Comment from an Attorney Questionnaire About Verifying Faithfulness of a Transcript*

The question concerned how long my client's deceased son had been out of sight. Q.-"So it was less than 5 minutes?" A-"No, more than 5 minutes." The comma--which totally changes the answer--was inappropriate. With video, we could have judged this answer and realized what was intended instead of havin.g to wonder two years later. * This comment was included on the survey response identified as Questionnaire 2082. Hereafter such comments will be identified as (Q.2082).

50 Assessment of Video Recording on Ten Evaluation Criteria method was applied. It proved to require tion."8 Walker's approach implies that a a system of discrepancy classifications record may be flawed not only when it that is complex, expensive to undertake conveys misinformation (a mistake, or a and, ultimately, subjective.4 Contribut­ deliberate clean-up of the language of the ing not least to the complexity is that speaker) or too little information (fails to "there is no clear consensus on what counts capture contextually important behavior). as a word."5 More interestingly, her approach also Following Walker and Saari, the suggests that a record may be flawed approach used in this study evaluates trial because it contains too much information, court records in terms of the idea of faith­ information that may be irrelevant. This fulness:fi proves to be a flaw with video recording, when the tape itself is relied on as the The concept of afaithfll/ representation of exclusive form of the record for appellate what was said or experienced at a legal review as Figure 4.2 illustrates. event is the genuine distillation of the true The flaws that sometimes mar the meaning of the verbatim record based upon products of the human court reporters are research to date.? well known and documented. Reporters A faithful record captures the verba­ may mishear; they may make mistakes in tim concept by presenting "a faithful rep­ keying; they may deliberately alter what they hear to conform to expectations of resentation of the events that are consid­ ered by the legal world to be informa- judges or lawyers or because they believe

Figure 4.2 Comments from Volunteer Judges and lawyers Who Viewed Videotapes Is the Record too Faithful? • "11 :06 - 11 :13: Seven minutes of watching the judge read--what use is this?" (Panel #1 B) • "Numerous asides, pauses and false starts could be skipped over rapidly using a written record while they must be endured on a real time basis with this record." (Panel #6C) • "[rhe tape is] too long and too boring." (Panel #6A) • "I hope I never have to prepare an appeal from a videotape record. Faithful it may be. But the process as a whole will be terribly inefficient." (Panel #8C) • "mhe tape is almost too faithful. There is too much tedium. A good deal of time is wasted while meaningless and unimportant tasks are performed by the court and counsel." (Panel #1 C)

51 VIDEOTAPED TRIAL RECORDS that it is an appropriate exercise of profes­ ing of what is occurring in court and help sional judgment. Quoting from Walker: to convey "what really happened."10

There is no real consensus in the reporting Findings field about how much editing should be The three methods used to evaluate done, but the view expressed in an educa­ the faithfulness of video recording were tional publication of the National Short­ described in Chapter 2-an attorney sur­ hand Reporters Association is as follows: vey, interviews, and review of sample videotapes by volunteer judges and law­ To edit orno~ to edit is not the question; every reporter does it in greater or less yers. The premise underlying the data degree. It is well settled that the re­ collection is that the best way to ascertain porter should make every effort to elimi­ whether video recordings make a faithful nate ubviously bad grammar from his record is to ask a large number of people transcript. The only questions are­ who use them and understand their sig­ whose utterances shall enjoy the privi­ nificance. lege of being edited? and how bad must grammar be to warrant the reporter's departmg from a strictly verbatim re­ QUALITY OF RECORDING. Video re­ port? These are the questions that each cording compares favorably with tradi­ reporter must answer for himself. Some tional court reporting in the sites we judges and lawyers like to be edited and studied. Table 4.1 shows how attorneys some do not. responded to the statement: "A court reporter makes a more faithful record than Note that this quotation makes the follow­ does videotape." Most of them disagree. ing points: (1) editing is done as a matter of Attorneys who have used videotapes to course; (2) editing is differential as to speaker; (3) editing is ad hoc to the situ­ work on an appeal, however, are more ation and reporter, and what the reporter likely to agree than are attorneys who knows about the intended reader (lawyer or have not used videotape to work on an judge); and finally, (4) sophisticated read­ appeal. The opinions of this group may be ers of transcripts are aware of the options of more meaningful, since they are the attor­ editing. Taken together, these points sug­ neys who work with the videotapes in gest that the National Shorthand Reporters circumstances where the quality of the Association (NSRA) guidelines implicitly recognize the points made earlier in this record is most important. chapter that "strictly verbatim" is in prac­ Problems with audibility are men­ tice neither an attainable nor a desirable tioned by attorneys and judges who have standard.9 carefully watched or used videotapes, but the problems do not cause most lawyers Moreover, written transcription by its and judges to have a negative opinion nature does not capture all of the behav­ about videotape faithfulness overall. The ioral facts (gestures, expressions, pauses, results of the review of sample videotapes speech tics, etc.) that comprise the mean- by judges and lawyers, reported in Ap-

52 Assessment of Video Recording on Ten Evaluation Criteria

Tabh~ 4.1 Attorney Opinions About Faithfulness of Court Reporter and Videotape Records Question itA court reporter makes a more faithful original record than does videotape." Attorneys Who Have Attorneys Who Have Used Videotape to Not Used Videotape Work on an Appeal to Worl< on an Appeal N=191 N=846 Agree 35.3% 21.9% Disagree 64.7 78.1 pendix C, illustrate this pattern. For ex~ only one played the tape on hi-fidelity ample, while 11 of the 25 judges and VTR equipment. lawyers found that inaudibility was a Faithfulness is compromised most "more than minor" problem in the video­ seriously by errors in operation of the tape they watched, only 7 of them agreed system. (Problems due to system failure that court reporters would make a more are rare, as will be discussed under "Re­ faithful record, and 4 of the 11 believed liability.") Limitations arising from micro­ that the videotape they watched was phone and camera placement, and behav­ "below a minimal standard." ioral characteristics of courtroom partici­ As discussed with the history ofvideo pants, also compromise record quality. recording in Chapter 1, complaints were These usually appear not to be serious, but commonly made about poor audio quality they occur more frequently. before the hi-fidelity systems were intro­ When a videotaped record is free of duced. Viewers continue to experience defects arising from these causes, it is problems with audio and video quality superior to a court reporter record in "lit­ because they do not understand how to get eral" faithfulness because of its breadth. the best results from available playback It objectively captures events of which a equipment or because they work (unnec­ narrative record is inherently incapable­ essarily) with a poor copy. For example, visual forms of communication that are among the five volunteer judges and undeniably relevant to the record. 11 At­ lawyers who opined that the videotape torneys who wrote comments on the attor­ they watched was "below a minimal stan­ ney survey often mentioned this advan­ dard," none of them watched the best tage of video recording, and some of the quality recording on the recommended comments shown in Figure 4.3 are typical viewing equipment. All five watched a of what is said about the value of the more dubbed copy of an original recording, and complete record.

53 VIDEOTAPED TRIAL RECORDS

FAITHFULNESS OF TRANSCRIPTS. In There are two policy extremes found Michigan, attorneys and judges routinely among the states where video recording is work with the transcription of the vide­ used regarding how the videotaped record otaped record. The quality of the tran­ should be used for appeals. At one ex­ scripts made from videotapes, therefore, treme is Kentucky, where the tape alone was included in the evaluation in Pontiac serves as the official trial record. The and Kalamazoo. The appellate lawyers state will not pay for transcripts made who were interviewed had no complaints from videotapes for use in appeals by about the quality of transcripts. More­ indigent defendants. At the other extreme over, 65 percent of 332 attorneys from is Michigan, where alI videotapes are Pontiac and Kalamazoo who were sur­ transcribed when an appeal is filed. This veyed disagreed that a court reporter will discussion considers the reasons for the produce a more accurate record than a respective policies adopted in Kentucky transcription service working from vide­ and Michigan, the advantages and disad­ otape. vantages of each approach, and some of Nine of 64 attorneys from Michigan the resource requirements of the two who wrote comments on their question­ approaches. naires mentioned faithfulness of the rec­ ord. Four of them expressed negative Kentucky's Reasons concerns. All of the comments about for Preferring Use of the faithfulness found on the questionnaires Videotape as tile Recordfor Appeal from Michigan are shown in Figure 4.3. The reasons for Kentucky's policy They are typical of both positive and are spelled out in its application for an negative comments related to the faithful­ award and grant from the National Com­ ness criterion that were received on ques­ mittee on Innovations, Kennedy School tionnaires from all of the sites. of Government, Harvard University. The following two statements paraphrase what Ease of Review: Videotaped Kentucky described in its application as Records and Appellate Review the first and second priority goals the video recording project sought to achieve: The fact that a videotaped record is more difficult to review is obvious to • Reduce costs to litigants by eliminat­ anyone who compares the two experi­ ing costly transcripts. Costs to the ences, and no conclusion from the evalu­ state (and taxpayer) for pauper tran­ ation emerged as clearly as this one: attor­ scripts are also reduced. Transcripts neys and judges do not like to work with cost $2-$3 per page, while a six-hour the tape routinely, and there is nearly videotape copy cost $15. universal agreement that it is more time­ consuming to work with a videotape than • Reduce delay by eliminating the time with a written transcript. What is not clear court reporters take to prepare the tran­ is the appropriate policy response. script. Attorneys have access to the

54 Assessment of Video Recording on Ten Evaluation Criteria

Figure 4.3 Comments from Michigan Attorneys About Faithfulness

• A machine does not know when it is not performing or i$ performing poorly. A court reporter is more likely to consciously make a good record. (Q. 3373) • Because there is no single person responsible for the videotape, transcripts often get screwed up. No record keeping, etc. I presently have a murder appeal which was screwed up due to the videotaping. (Q. 3049) • I had one occasion where the court clerk didn't have a tape in the video recorder and so nothing WilS recorded. (Q. 3267) • I believe that a transcription service working from a videotape would produce an inferior transcript to a court reporter. (Q. 3191) .. Videotapes more accurately portray what happens in the courtroom, more so than reading the written words. (Q.3381) • Non-courtroom video (Le., deps) - audio sometimes poor quality (i.e. shuffling papers, coughing) sometimes overrides testimony. Not a problem in the video courtroom. Better microphones there? Non-courtroom-deps-"talking head" appearance of defendant. Not a problem in video courtroom where camera angles change. (Q.3108) • Assuming reliability of process, video has two advantages: (1) a picture is worth 1000 words and (2) visual review minimizes error of context, etc. in reducing to writing. (Q. 3124)

o One can evaluate demeanor of witnesses by the use of videotape. (Q. 3028) • Decorum of judges and attorneys and others readily seen. Sarcasm can be readily observed as can improper actions by both attorneys, courts and others. (Q.4127)

tape at the close of each day's session all appeals in Kentucky except those origi­ of court and, if an appeal is contem­ nating in Jefferson County. These public plated, they can begin to work with the defenders routinely request extensions of record immediately. TypiGally, tran­ time to file briefs in videotape appeals, scripts take 60-120 days to produce. 12 and, in one case, they unsuccessfully petitioned the Kentucky Supreme Court Kentucky's Policy­ to have the state pay for transcription of What Its Critics Say the videotape when the record included The most outspoken critics of using 21 videotape cartridges. This was fol­ the videotape exclusively for appellate lowed, also unsuccessfully, by an appeal review are the attorneys of the state de­ to the U.S. district court when the su­ partment of public advocacy, who handle preme court did not grant relief.13 AI-

55 VIDEOTAPED TRIAL RECORDS

though the federal court did not grant Jefferson County appellate defender relief, it ordered that video playback Frank Heft is perhaps the most knowl­ equipment be made available to the de­ edgeable lawyer in the country about fendant in prison. Spokespersons for the working with videotape appeals. Heft Kentucky attorney general's office have acknowledges the advantages of video­ also criticized the poHcy because it "con­ tape for reducing time to prepare the rec­ sumes an inordinate amount of time. An ord on appeal and for lowering the costs of attorney must listen to the entire tape and obtaining it. Unlike the department of replay those portions relevant to the is­ public advocacy, the attorney general, sues briefed in order to take notes. ''14 One and the private bar, the Jefferson County judge of the court of appeals has been public defender's office has availed itself outspoken in opposition to the policy of the equipment recommended in Chap­ requiring that the tapes be used for the ter 1 for playback for appellate review, record on appeal. 15 Other judges on the and attorneys in the office have become court of appeals have not publicly com­ more adept at working with the tapes. plained of the practice, but they agree that Nevertheless, says Heft, using videotapes is less convenient than using a transcript for appellate review. 16 the fact remains that we can review tran­ The burden of working with video­ scripts of evidence and make notes quicker tape is most extreme when the lawyer than we can review videotapes and make notes .... In videotape cases ... requests for working on the appeal was not the lawyer extensions of time to file briefs have nec­ at trial, as is the case with the public essarily become routine. 18 agency lawyers in Kentucky. The Louis­ ville-Jefferson County Public Defender Private attorneys, even those who Corporation, a separate agency from the have been present at trial, also complain Kentucky department ofpublic advocacy, about using the videotape and would prefer handles all appeals from the Jefferson to have a transcript for a working record. County Circuit Court. In effect, this means Only one of the approximately 1,100 at­ thatthe lawyers in that office work almost torneys heard from in the study offered a exclusively with videotape appeals, and comment that was contrary to the pattern: they appear to believe that review is manageable when the record is short (one I didn't find it difficult to work with at all. or two videotapes): I knew what I wanted to say, so I just looked it up (on the tape) . ... given our caseload, it is unlikely that we will be able to file briefs within the thirty This Vancouver attorney worked on an day period if the record on appeal is com­ appeal from a trial that lasted less than one prised of three or more videotapes.17 day and was captured completely on one six-hour videotape. He also worked with

56 Assessment of Video Recording on Ten Evaluation Criteria reviewing equipment provided by the exceptions. In addition to the fact that court. Another Vancouver lawyer who most trials and appeals involve relatively praised video recording highly overall short records, many appeals, no matter expressed the typical point of view: how long the trial, may require little work with the record. Finally, the problems It takes three or four times as long (to work associated with working with videotapes with the tape), even when you've tried the may be substantially alleviated by im­ case. You may have to go over critical proved technology and new work habits. testimony many times. While experienced lawyers strongly re­ sist changing their familiar work patterns, The research yielded scores of similar new lawyers who start their careers with comments from attorneys and judges; a video recording may experience to a lesser selection is presented in Figure 4.4. A degree the frustrations expressed by other mix of attorneys who were positive, neu­ lawyers, particularly with better equip­ tral, or negative overall about video re­ mentforreplay. Educating lawyers about cording are represented as authors of the improved equipment to review videotapes comments. Attorneys who were neutral is under way in Kentucky. Kentucky or negative about video recording were intends to stay the course of present policy more likely to mention the problem of while new equipment and improved train­ review: ing is being tried. Only if those initiatives have been tried without success in reduc­ The Response by ing complaints from the appellate bar will Court Officials in Kentucky the policy regarding transcription be reex­ Commonwealth court official;; ac­ amined, "because we will then have run knowledge that working with videotapes out of other ideas."2o takes longer, but they nevertheless be­ lieve the use of videotapes as the record Summary of Michigan's Policy on appeal should be continued. Court of and Approach ttl, Appellate appeals data in Kentucky indicate that Review of Videotaped Trial Records more than half of all video appeals in­ In Michigan, statutes and court rules volve a short record (one videotape or require that the record of proceedings be less), and thatlengthyrecords (3-22 video­ made and certified by an individual who is tapes) are found in less than one quarter of a certified court reporter or recorder. A 19 the appeals. The official view, there­ courtrecorderis someone trained to prop­ fore, is that the problems of working with erly transcribe court records made with a single videotape are manageable, and electronic recording devices. In an ad­ that the highly publicized cases where ministrative order entered by the supreme lawyers must spend a very long time pre­ court in 1987, existing rules were modi­ paring 11 brief from videotapes are the fied so that the court reporter or recorder

57 VIDEOTAPED TRIAL RECORDS

Figure 4.4 What Attorneys Say About Working with Videotapes to Prepare an Appeal

• For appeal a video increases preparation, review, and makes the cites to the record very difficult. It also substantially increases the cost of appeal because of the difficulty and length of time to review testimony. (Q. 2131) • Use of video on appeal is horrible! It is much too time consuming and it is beyond belief to think appellate courts will review them at all. (Q. 2391) • Videotape is very useful in small cases of very short duration. It is miser:3ble to deal with a long and complex case, especially on appeal. It is valuable as a visual supplement to a written transcript and as a training or self-critiquing tool. It can in no way equal the advantages of a human being, especially when the new computerized litigation support systems are utilized. (Q. 2108) • In all of our appeals, we have had substantial portions of the trial transcribed. It is virtually impossible to prepare a brief from the videotape. (Q. 2353) • The cost savings of videotape is great compared to a transcript. However, the savings are lost on appeal in the time it takes an attorney to review the tape. A better system to develop a real time index should be used. (Q. 2123)

o The appellate process from a video trial transcript is horrible. When the right points are finally found and noted in the brief all attorneys believe that appel­ late judges will not get out the tapes, find the appropriate portion of the trial, and watch the tape. It is very time consuming. (Q. 2352) • Video is good, but very difficult to use on appeal. I almost always have the proceedings transcribed. (Q. 2389) • J think the reduced ccst and reduced time for preparing a record are great advantages of videotape. The longer time needed to review a videotape is an obvious disadvantage, but can be overcome by requesting a transcript when needed. I am in favor of continued use of videotape transcripts. (Q. 2211) • If I were an appellate attorney for the Attny. General, Public Defender, or DPA I would hate to sit through the tape as opposed to having a transcript made. Money should be made available to those folks to have the tapes transcribed. (Q.2363)

who transcribes a videotaped proceeding Court officials in Michigan contract does not have to be present at the hearing, wi th certified court recorders to make the but only has to certify that the transcript transcripts for appeal. There are two represents "the complete, true and correct services operating in different parts of the rendition of the videotape proceedings as state that transcribe videotapes from the recorded. "21 four courtrooms. The services are noti-

58 Assessment of Video Recording on Ten Evaluation Criteria fled by mail when a transcript is needed, savings in transcript costs are offset by the and tapes are picked up by the transcrip­ increased (and costly) timeattome.ys must tion service or are shipped via a package take to prepare a brief. (This latter point carrier. Procedures for processing tran­ will be discussed more fully under "Ex­ scriptrequests vary among the courtrooms. pense.") Transcripts requested by judges and When videotapes are transcribed for lawyers in Pontiac for reasons other than appellate review, as they are in Michigan, an appeal are produced by an employee of the complaints ofjudges and lawyers about the court who also operates a private video recording are avoided. The fact that business transcribing videotapes.22 The a record was originally made by a video fees charged by the transcription services recording is transparent to them when in Michigan are identical to those charged they work with a transcript, and a video­ by court reporters. It appears that this taped version is still available immedi­ would also be true elsewhere.23 ately and can be referred to if the video When video recording was intro­ record preserves visual evidence not pre­ duced in Michigan, some trial court judges served in the transcript. The disadvantage shared the view of Kentucky officials and is that some of the savings in time, and all believed that the requirement to transcribe of the savings in cost of transcript prepa­ the record was unnecessary and failed to ration, are lost. All of the savings for the take full advantage of the video system. trial court that accrues from a less expen­ Experience has led them to question the sive approach to making the record re­ Kentucky approach, however, for the same main, however, as will be clear from the reasons advanced by critics of the policy discussion that follows. in Kentucky.24 Expense Summary o/the Policy Issues Regarding the Use Where video recording has been o/Videotape as the Record/or installed, reduction in the expenses asso­ Appellate Review ciated with court reporting have been used The advantages of using the video­ in every case to persuade funding bodies tape itself as the appellate record are that to make the initial necessary appropria­ itis available more quickly and avoids the tions. This section examines whether costs of having a transcript prepared. The those claims are justified and the approxi­ disadvantages are that it takes more time mate magnitude of the savings realized. to review and that videotape is not as To examine costs fully, those related convenient and flexible as a transcript to using the record must be considered in (equipment is required). Lawyers and addition to those related to having itmade. judges generally prefer a transcript for This translates roughly into a requirement most routine review purposes. Because it to examine costs in both trial and appel­ takes longer, opponents argue that the late courts. Cost data from Seattle and

59 VIDEOTAPED TRIAL RECORDS

Pontiac illustrate the variety of cost fac­ tal expense, primarily for the acquisition tors that must be taken into account at the of seven new video recording systems.25 trial court level. Estimating costs at the Between 1984 and 1988, Kentucky trial level is comparatively straightfor­ realized a 15 percent decrease in its budget ward, but evaluating costs at the appellate for court-reporting services, including level is not straightforward, and some indigent transcripts. The savings realized questk ,remain unanswered. Because from a projected budget (Le., the costs of Kentucky is the only state where video court reporting had the video recording recording is widespread, and because it program never begun) would have been has unitary budgeting for all of the courts, greater, allowing for inflation of the 1984 it is also possible to present an overview salary figures. Table 4.2 shows actual of the changes that have occurred in its expenditure detail. statewide budget since video recording was introduced, before looking more Comparative Costsfor closely at detailed cost considerations at Equipment and Operation of Video the trial and appellate levels. Recording and Traditional Court Reporting in the Trial Courts Kentucky's Statewide The purchase of video recording Budgetfor Court Reporting equipment is a substantial expenditure­ and the Video Recording Project, $60,000 to $70,000. These capital costs 1984-88 are typically amortized on a five-year From 1984 to 1988, the state re­ depreciation basis. Budget presentations placed 16 court reporter positions and typically contrast the expense of video three court reporter/secretary positions recording system with costs to support with video recording. The court reporter/ court reporters. secretary positions were replaced with The Video Recording Review Com­ three secretary positions at a cost of mittee (VRRC) of King County, Washing­ $47,800 (salary and benefits). The net ton, conducted an investigation of com­ savings associated with these changes was parative costs for video and court reporter $318,000 for the 1988 fiscal year. The systems.26 The VRRC report offers de­ cost of operations for the video recording tailed documentation of cost factors. It is project (personnel and operating expenses) especially valuable because it itemizes was $118,000 and included $35,000 for the tasks and costs associated with operat­ salaries and benefits of a video technician ing the equipment in the courtroom and and secretary and $83,200 forvideotapes, handling and processing the videotaped maintenance contracts, and other miscel­ records. Data provided by the trial court laneous items. The net savings between administrator in Pontiac are also rela­ the court reporter salaries that were tively detailed. Using the Seattle and avoided and the cost of video system Pontiac data, Table 4.3 shows nine differ­ operation amounts to $200,000. In 1988 ent cost items that need to be considered the state also budgeted $386,000 in capi- by court planners as they consider video

60 Assessment of Video Recording on Ten Evaluation Criteria

Table 4.2 Kentucky Expenditures for Court-reporting Services for Fiscal Years 1984 and 1988 Percentage FY 84 FY 88 Change

Salaries $1,373,264 $1,192,359 -13% Benefits 259,819 241,555 ·7 Per diem 134,542 85,864 -36 Pauper transcripts 260,899 193,655 -26 Operating expenses 27,646 41,834 +51

TOTALS $2,056,170 $1,755,267 -15% Source: Administrative Office of the Courts

Table 4.3 Comparative Costs of Video and Court Reporter Systems in Seattle and Pontiac

Seattle Pontiac Court Count Reporter Video Reporter Video

Court reporter salary and benefits $46,124 $45,455 Substitute court reporters 64 2,875 Video clerk salary and benefits $1,160 Records staff salary and benefits 2,767 3,890 $ 4,428 Equipment 150 12,091 l,47~1 14,629 (Amortized over five years) Equipment maintenance contract 3,023 3,461 Videotapes 2,426 3,612 Office supplies 385 100 4,500 1,125 Office space 955 819 819

TOTALS $50,544 $22,690 $55,'20 $28,124

Annual differences -27,854 -26,996 (court reporter v. video)

61 VIDEOTAPED TRIAL RECORDS recording. Each of these items is dis­ In Pontiac, one person is responsible for cussed in tum. In Seattle and Pontiac, as all activities (in and out of court) that the table shows, video recording is esti­ support operation of the system. In Se­ mated to cost roughly one-half as much as attle, the responsibilities are split among traditional reporting. the in .. court clerks and records manage­ COURT REPORTER SALARY AND ment personnel. Pontiac officials esti­ BENEFITS. This is the major source of mate 400 hours annually for the video savings when courts convert courtrooms recorder/technician to complete all of the to video recording. If the court reporter video recording operations tasks, but no routinely performs secretarial services for detailed breakdown between in-court and judges or plays a substantial role helping out-of-court records management costs is with clerical duties in courtrooms, con­ avaiIable,21 Typically, the tasks that are sideration needs to be given to how those required for video systems include (1) services will be performed if a court re­ keeping minutes of what occurs in court, porter position is abolished, and at what by date and time (hour, minute, second) to cost. The annual cost of court reporter provide a reference for later review of salary and benefits in the sites varied from portions of the tape (these are called tape a low of about $22,900 in Kentucky to a logs); (2) loading and unloading tape in high of $46,124 in Seattle. the machines; (3) labeling tapes and tape CONTRACTUAL SERVICES FOR COURT boxes; (4) filing and retrieving tapes and REPORTER REPLACEMENTS. This item takes tape logs; (5) maintaining records about account of what is spent to replace court tapes that are checked out to transcription reporters with contract reporters when services or attorneys; (6) copying tapes court reporters are absent from work. In when necessary; (7) performing minor Seattle, where there is a court reporter maintenance routines and overseeing pool system, vacancies are almost always vendor service; (8) assisting attorneys who covered by other reporters in the pool. In may be using the court's viewing equip­ Pontiac, each reporter is assigned to a ment; and (9) assisting with visitor orien­ judge, so a replacement must be hired to tations and public relations. (Task 9 is one cover absences. This explains the rela­ that is necessary because there is a high tively high cost of this item in Pontiac. level of interest among other COllrt offi­ IN-COURT VIDEO CLERK SALARY AND cials in this new technology, and visits BENEFITS. A videotape system requires and inquiries are common.) someone to load and change tapes, make How the court accomplishes task 1 a written record when events occur in the (making the videotape log) varies among courtroom (a tape log), and perform du­ courts. In Kentucky, clerical staff or ties required to support the system. Pon­ bailiffs are not typically present in court. tiac and Seattle have written descriptions 1';,e judges keep the log themselves, and if of the responsibilities associated with that practice changed, additional person­ managing the video recording systems. nel would be needed. In Seattle, there is

62 Assessment of Video Recording on Ten Evaluation Criteria a courtroom clerk in addition to court notes and transcripts. The activities asso­ bailiffs, who are personal assistants to the ciated with labeling, storage, retrieval, judges. The courtroom clerk keeps min­ public access, and duplication of tapes utes of the events in court as part of his or were carefully studied in Seattle's VRRC her duties, independent of video record­ study and are presented as a separate item ing. These clerks now combine tasks of in Table 4.4. While these activities need keeping the minutes and keeping the video­ to be performed in any court, they are not tape log and are paid a salary increment usually accounted forin cost estimates. In for having assumed additional responsi­ Pontiac, they are included in the activities bilities related to operating the video re­ of the video clerk/technician and were es­ cording equipment and keeping the Jog. timated at 400 hours per year. In Raleigh and Vancouver, the judges' In Louisville, there is a video office secretaries were able to keep the logs even where two staff members spend the ma­ when they were not present in the court­ jority of their time managing the video room, by keeping an eye (and ear) on records system for 16 courtrooms (they monitors in their offices. also have the responsibility to organize, Whether administrative personnel or index, and store the cOUlt reporter notes judges keep the log and manage the equip­ that were left by court reporters). In ment is an important decision that in­ Fayette County, Kentucky, one person volves conflicting objectives related to who was responsible for processing all expense, record and log quality, and ef­ appeal-related records for five courtrooms fect on the legal environment. When the when court reporters and transcripts were judges keep the logs, and do so poorly, it used now continues to do so when video­ is difficult far court managers to do any­ tape is used in four of the five courtrooms. thing about it. Some lawyers object to the It appears, then, that courts are either able practice of having judges operate the to accommodate the necessary tasks re­ equipment because it creates the opportu­ quired by the video system by redistribut­ nity for inappropriate manipUlation of the ing work or by adding positions up to record. These problems are avoided when about one full-time-equivalent clerical court personnel, who are accountable to position for every four courtrooms that court administrators, are in charge of the use videotape. record, although using court employees EQUIPMENT. The cost of purchasing to operate the equipment and make the the basic video recording system described record is more expensive for courts that in Chapter 1 is normally about $70,000 do not usually have clerical personnel for the first courtroom; this includes play­ present in court. back, copying, and transcribing equip­ RECORDS STAFF SALARY AND ment that will not be purchased again with BENEFITS. Videotapes require special subsequent courtroom installations. The handling and procedures that are different cost per courtroom will be nearer $60,000 from those required for court reporter for the subsequent installations. In Pon-

63 VIDEOTAPED TRIAL RECORDS tiac, equipment is purchased through a SUMMARY OF TRIAL COURT capital equipment fund, and each depart­ EXPENDITURES. Table 4.4 provides sum­ ment is charged a monthly depreciation mary comparisons of cost data provided and maintenance amount. Pontiac also by other courts, without detail. It is clear pays monthly fees for transcript produc­ from Tables 4.3 and 4.4 and the support­ tion equipment used by court reporters, as ing detail that the important variables are well as for the cost of the video recording court reporter salary and benefits, person­ equipment. Seattle shows only minimal nel costs for operating and maintaining equipment costs for court reporters. the video systems, and the capital costs of Most courts depreciate video record­ video equipment. ing equipment on a five-year basis. Other What makes video systems substan­ courts show the annual equipment amor­ tially less expensive than traditional court tization on a seven-year scale (e.g., Wayne reporting is that the costs of video record­ and Berrien counties in Michigan.) ing (equipment and video technician/clerk EQUIPMENT MAINTENANCE CON­ personnel) do not equal court reporter TRACT. The vendor warrants and main­ salary and benefi ts. If the cost difference tains the equipment for the first year of per courtroom per year is projected for the operation. Thereafter, the vendor offers a entire court in Pontiac, where there are 14 maintenance contract at 5 percent of the courtrooms, the cost saving is approxi­ purchase price. mately $377,944 annually. Seattle em­ VIDEOTAPES. The vendor provides a ploys about three times as many judges as one-year supply of tapes with the pur­ Pontiac, so a projected savings per year in chase of each system. Thereafter, the Seattle would be around $1.17 million. courts purchase tapes for approximately $5.00 each. The appropriate quantity will Costs for Appellate Case Processing depend on how the courts conduct busi­ Cost factors at the appellate level ness and the procedures followed for include purchase of the equipment re­ taping in each courtroom. quired for reviewing videotapes and the OFFICE SPACE. This is a cost factor relative expense of using videotapes and when special offices are provided for court narrative transcripts for appellate review. reporters or for video technician staff. A six-hour videotaped record costs about Storage space is also a factor; for one set $10 to $20. A transcript costs about $200. of courtreporter's notes for six hours, two Because so many lawyers and judges say videotape boxes will have to be stored. that working with videotape takes much Both Seattle and Pontiac included office longer than working with a written rec­ space for court reporters based on cost ord, an offsetting increase associated with formulas used by their counties for square paying for the professionals' time must footage. also be included as a cost factor. Each of

64 Assessment of Video Recording on Ten Evaluation Criteria

Table 4.4 Annual Costs for Trial Courts: Court Reporter v. Video System (per Courtroom)

Video Court Reporter Difference

Louisville* $10,600 $22,900 $12,300 Pontiac 28,124 55,120 26,996 Raleigh 14,467 32,006 15,539 Seattle 22,690 50,544 27,854

* Louisville's data only include costs of video recording equipment (53,000/ 5 years), and average court reporter salaries. It does not include any expenses associated with the cost of operation for court reporters (supplies, equipment, space, etc.) or the video system operation.

these factors--equipment costs, savings tapes are not routinely used by attorneys in transcript expense, and the potential for to prepare briefs nor reviewed by the increase in professionals' time-are dis­ appellate court, there is little fiscal impact cussed below. of the video system at the appellate level. EQUIPMENT FOR THE ApPELLATE (While appellate judges and lawyers must COURTS. The cost of a playback system have some access to video playback equip­ suitable for use by appellate courts is ment, they will not use it often, and a few $2,480 or $3,800, depending on whether stations will suffice for access. Trial an optional speed-viewing playback en­ courts have equipment available for law­ hancement feature is included. The basic yers.) system includes a monitor, tape player INDIGENT TRANSCRIPTS. Annual state and a high-speed fast forward and rewind costs for indigent transcripts were ob­ capability that is programmable. The tained from Kentucky and Washington. more expensive system allows the tape to In 1988 theywere$178,125 and $544,776, be played at twice normal speed. If one respectively. Since 1984, when the video­ station was provided to each intermediate tape program began in Kentucky, the actual appellate judge, the total annual cost would annual costs for pauper transcripts have be about $12,160 in Washington (16 been reduced by 32 percent, from judges), $9,120 in North Carolina (12 $260,899. This potential saving is only judges), and $10,160 in Kentucky (14 relevant if a state is considering a policy judges.) This assumes a five-year depre­ of using tapes, not transcripts, for appeal. ciation rate. In Michigan, where video- When these savings are assumed, the off-

65 VIDEOTAPED TRIAL RECORDS setting costs for playback equipment and Louisville-Jefferson County Public De­ possible increases in personnel need to be fender Corporation-the two public agen­ considered. cies that represent indigent criminal de­ COSTS RELATED TO INCREASED TIME fendants on appeal-both agree that us­ FOR REVIEWING THE RECORD. While it is ing videotaped records for appeal prepa­ universally agreed, or nearly so, that it ration will inevitably either increase costs takes staff attorneys and judges more time or lead to an increasing backlog of cases. to review an appeal, the results are am­ The office of public advocacy has biguous when all of the available data are not, however, increased personnel during considered together and provide no sound the last four years as a consequence of the basis for estimating the effect of this fac­ video recording effort. Lawyers in the tor on system costs. The nine appellate agency say that preparation of briefs does judges in Kentucky who were interviewed take longer and that, as a consequence, reported that they are not taking any longer they must compensate by working longer overall to complete their work on cases. hours. They also say that extensions of Available data on criminal appeals from time to file briefs are being requested and Louisville, moreover, show no evidence granted in more cases. Administrative of a slowdown in case processing time officials in Kentucky agree that this seems (see "Timeliness," below). In 1988 the to be happening.28 The Louisville public number oflaw clerks for the intermediate defender office, on the other hand, has appellate courts was increased by one for recently added one full-time lawyer whom 11 of the 14 intermediate appellate court they say is needed to keep work current judges, but the explanation for this ap­ now that the office works exclusively pears to lie in Kentucky's continuing need with video appeals. to address overall caseload increases. While public defenders and state Adding law clerks was a compromise court officials agree that requests to ex­ between the judiciary and the legislature tend the time to file briefs have increased to increase appellate court resources in with video recording they do not agree on response to a rising caseload. The com­ all of the reasons for the increase. The monwealth has added no new judges to disagreement concerns how frequently the court of appeals since it was created in attorneys must work with records of long 1977. Between 1977 and 1986, the filings trials and what the overall effect is when in the court of appeals have nearly doubled, the long trials are spread over the entire rising from approximately 1,800 to 3,500. workload. Public defenders argue that the effect is significant. They handle crimi­ Public Defender nal appeals exclusively and do not enjoy PERSONNEL COSTS. The Kentucky the benefit of having represented the de­ department of public advocacy and the fendant at trial. State court officials be-

66 Assessment of Video Recording on Ten Evaluation Criteria

Table 4.5 Number of Videotapes Making Up the Record for Kentucky Videotape Appeals in 1988

Statewide Jefferson County

Total number of videotape appeals 186 71 Total number of videotapes 397 151 Average number of videotapes per appeal 2.1 2.1 Median number of videotapes per appeal 1.0 1.0 Percentage of appeals with 1 videotape 51.1 49.3 Percentage of appeals with 2 videotapes 25.3 28.2 Percentage of appeals with 3 videotapes 11.3 12.7 Percentage of appeals with 4 videotapes 5.4 2.8 Percentage of appeals with 5-20 videotapes 7.0 7.0

lieve that while there is no doubt some case for civil appeals.29 Thus, it may be effect, it is manageable because most the case that the view of the Kentucky records on appeal are relatively short. admimstrative office of the courts about Table 4.5 shows the data gathered in how frequently the public defender must Kentucky about the length of videotaped work with long cases is an underestima­ records associated with appeals during tion. More directly to the point, however, 1988. Fifty percent involve one tape or a are data obtained from Kentucky about fraction of one tape, about 25 percent how long it takes on average to complete involve two tapes, and the remaining various stages of appeals-including brief­ quarter of the cases have three or more ing-for video and non video appeals. tapes. Very few cases (7 percent) fall in These data are discussed more fuUy be­ the category that has been most often cited low in the examination of "Timeliness." by attorneys in connection with extraordi­ They do not support the claim that video­ nary delays in filing briefs. tape slows down the briefing stage, on Data in Table 4.5 do not discriminate average. between criminal and civil appeals. Re­ EQUIPMENT COSTS. The department cently conducted research on the nature of public advocacy's appellate defender and composition of appellate caseloads section uses stand~rd VCR equipment and shows that significantly more criminal a television to review tapes.3D The Jeffer­ appeals arise out of jury trials than is the son district public defender has acquired

67 VIDEOTAPED TRIAL RECORDS reviewing equipment that is better suited Private Litiga1lts to the task, including the JA VS system 2X If an appeal is briefed using a video­ review equipment. The actual costs for tape, the cost to the litigant for the record the equipment used by both agencies is on appeal is negligible-about $15, not known. More relevant than the actual compared to hundreds of dollars for a expenditures for equipment is the obser­ transcript of each day's proceedings.31 vation that each office should have the For a short videotaped record (one day), equipment described earlier that has been many of the attorneys who were inter­ installed in the appellate courts in Ken­ viewed agreed that any increased cost tucky. This equipment, including the 2X charged to the litigant for briefing the case feature, costs $3,800 per station. The using the videotape would be minimal ratio of playback stations to attorneys, and likely would be at least offset by the perhaps, should be 1: 1. transcript cost savings. It is not possible to say the same for longer records. No Private Attorneys appellate attorney interviewed would Trial courts usually purchase video hazard a guess about how clients would be viewing equipment and make it available billed differently for brief preparation in to lawyers at the courthouse. Only a few video cases than they would in cases where ofthe appellate attorneys interviewed used a transcript was used, nor whether savings the court's equipment when they worked from avoiding transcript costs would off­ on appeals, however. Most preferred to set other increases. use home-viewing or office equipment. Private attorneys generally say that No private attorney interviewed, even in for a long case the preferred option is to the largest and most affluent firms, used have the videotaped record transcribed. the optimal configuration of playback The costs to the litigants for a transcript equipment while reviewing videotaped are equal to or less than they would be if records. Given the drawbacks inherent in the record was taken in court by a court a record that can only be accessed sequen­ reporter.32 tially with today' s technology, such equip­ ment is highly desirable for attorneys who Summary ofeost Implications specialize in appeals. The best equipment of Video Recordillg does not make reviewing a videotape as There are savings in public expendi­ convenient and fast as a written record, tures at the trial court level when records but it can signiftcantly improve the proc­ are made using videotape instead of court ess. The configuration needed is the same reporters, and these are substantial. Table as that now available in the court of ap­ 4.6 illustrates the potential savings in trial peals judges' offices in Kentucky, which court expenditures that might be realized costs $2,480 to $3,800. It is unlikely that if video recording were widely used in a even a large firm would need more than state, using the state of Washington as an one playback station. example. The savings per courtroom are

68 Assessment of Video Recording on Ten Evaluation Criteria

Table 4.6 Cost Savings that Might Be Realized in Washington's Courts by Using Video Recording

Savings at Savings at Number of $27,854 $22,283 Courtrooms per Courtroom 1 per Courtroom2

133 $3,704,582 $2/963,639 (statewide) 66 1,838,364 1,470,678

1 Cost savings documented in Seattle.

2 These are 2G percent less than savings in Seattle, which would probably not apply ststewide. shown at $27,854--equal to that docu­ transcripts, but the savings would depend mented in Seattle-andat$22,283, which on what percentage of all of the state's is 20 percent less than the savings in appeals arise out of the video courtrooms. Seattle. (Seattle's figures are probably Once the savings in transcript costs is too high to be applied fairly to the whole determined, the additional costs the state state.) The table also shows the estimated expects to incur as a result of purchasing savings if all the superior courts in Wash­ playback equipment for use by the appel­ ington converted t.o video recording and if late courts and public lawyers must be just one-half of the courts converted. subtracted. These should be estimated at States that followed Michigan's $3,800 per station and be depreciated on a approach on the use of the record on five-year basis in order to arrive at annual appeal would realize savings proportional costs. to those illustrated in the case ofWashing­ Again, using Washington as an illus­ ton, and no significant corresponding tration, the annual cost for purchasillg increases elsewhere would offset them. playback equipment for each of the state's If the Kentucky model is followed, court of appeals and supreme court judges however, estimating the statewide costs is would be $16,720. Far more costly, a difficult task because of the effects on however, would be providing playback the appellate system. The savings real­ equipment for the public defenders, prose­ ized through reduction in the costs for cuting attorneys, and other lawyers who indigent transcripts must first be consid­ would need it to work on appf'~ls. For 78 ered: in Washington, $544,776 was spent workstations (an average of~ for each of on indigent transcripts in 1988. Some part the state's 39 counties), the annual cost of this cost would be saved by avoiding would be$59,280,oratotalof$76,000. If

69 VIDEOTAPED TRIAL RECORDS personnel must be increased in the appel­ for every two appellate judges, the sav­ late courts or other agencies to compen­ ings would disappear entirely, sate for additional time required to work It is very unlikely in practice that any with a videotape on appeal, additional state's systems would be either all video costs would mount quickly. Whatever recording or all traditional court report­ these may be, they must also be subtracted ing. States are more likely to have a mix from the estimated savings attributed to of video recording, traditional methods, avoiding the costs of transcripts. In audio recording, reporters using their Washington, the addition of one law clerk own CAT systems, and even some court­ for every two appellate judges (13 clerks rooms equipped as "computer-integrated at $35,000 per year for salary and bene­ courtrooms." The model for estimating fits) would total $455,000, a sum that costs savings presented in summary be­ nearly eliminates the savings realized by low is be8t used as a generalized frame­ avoiding transcript preparation. work around which concrete cost evalu­ V/hether it is reasonable to assume ations can be built for each state, based on that increases in personnel of the magni­ the policy assumptions and cost factors tude suggested above (one clerk for every that are appropriate there. two appellate judges) would be needed in To summarize: t.he appellate courts so/ely as a conse­ quence of using videotape as the official • Substantial cost savings for trial courts record on appeal is a matter of conjecture. are possible where video recording is A more reasonable assumption is that used instead of traditional court re­ personnel would need to be added in the porting. states' appellate defender offices. If Washington's appellate defender service • Ifvideotapes are transcribed routinely, added four new lawyers to compensate virtually none of the savings in trial for working exclusively with videotape court expenditures are affected. (this would be a proportional increase to what has occurred in the Louisville/Jef­ • While the use of videotape instead of ferson County appellate defender's of­ a transcript may save a substantial sum fice) the cost would be $120,000 (four in direct costs for producing transcripts, attorneys at $30,000 per year.) there may also be new costs for equip­ Therefore, it appears that a conserva­ ment and additional lawyers in the tive analyst in Washington would com­ appellate courts and public defender bine the equipment costs ($76,000) and offices that could offset those savings the cost') associated with an increase in entirely. appellate defenders ($120,000) and see the savings by avoiding transcripts re­ • Each item on the following model duced by about han', If it proved neces­ should be addressed by planners who sary to increase the. staff of the appellate are considering the cost/benefits of a courts by as much as one appellate clerk video recording program in their state.

70 Assessment of Video Recording on Ten Evaluation Criteria

Model for Evaluating Comparative Statewide Costs of Video Recording and Court Reporter System for Making the Record of Trial Court Proceedings

Trial Court Appellate System (costs per courtroom) Court reporter salary and benefits Appellate transcripts for indigents

Substitute court reporters Costs for equipment for appellate judges and clerks to review videotapes Video clerk salary and benefits Additional staff attorneys in the appellate courts Records staff salary and benefits Additional equipment in public defender's offices Equipment Additional lawyers in public defender's (Amortized over five years) office

Videotapes Additional equipment available for occasional use by public and private lawyers Office supplies

Office space

Record Availability tales of woe about how long it took to obtain the transcript required on app.:>al. An advantage claimed for videotape Some data are available to put these sto­ by its proponents is that one of the key ries in perspective and are presented be­ time intervals in appellate case process­ low. ing-notice of appeal to transcript/record The interviews with judges and at­ production-is reduced significantly, torneys in all of the sites yielded consis­ because the videotape is available imme­ tent acknowledgments that a videotaped diately upon the conclusion of the trial. A record was immediately available, and court reporter's notes. on the other hand, this was seen as an advantage. Just as must be tranl>cribed. and the corpus of consistently, however, judges and attor­ "war stories" told by judges, court admin­ neys claimed that it takes them much istrators, and attorneys is replete with longer to review the record when the

71 VIDEOTAPED TRIAL RECORDS videotape is used for an appeal. In Ken­ stage is the filing of the transcript. By this tucky, the lawyers who represent indigent time, attorneys have everything they need defendants on appeal are convinced that to begin preparation of briefs. In Ken­ the difficulty of workinr, with videotape tucky, this requires only the inclusion of when preparing a brief makes the briefing the videotape(s) with the case papers. In time anywhere from two to five times as Michigan, this is the stage when the tran­ long. In Michigan, where the tape is scription service produces a readable transcribed, it is claimed that the tran­ record by transcribing the videotape. scription service used there produces a The second stage is brief prepara­ narrative record more quickly on average tion. During this stage, attorneys work than court reporters do. This claim is also with the trial record to prepare their briefs. examined through available data. The appellant's brief is prepared first, Reducing appellate-court processing filed at the court of appeals and made time ultimately means reducing the over­ available to the respondent. This stage all time from filing the appeal to final ends when all briefs have been prepared, disposition. While achieving a reduction exchanged, and filed. in time for any stage of appellate case Stage three is the period when the processing offers potential for reducing merits of the case are considered by the overall time, this is not an absolute. If the court of appeals. It has several recognized change that contributes to reducing one steps within it (e.g., ready to assignment interval causes an increase in time for one to a panel; ready to oral arguments). This or more other intervals then the effects are stage ends with an order or opinion. offset. Data from Louisville suggest that video recording does reduce the time from Comparison of the notice of appeal to recei pt of the transcript A vailability of Videotaped and record by the court of appeals and that and Narrative Recordsfor Appeal other case-processing time intervals are A comparison of the criminal ap­ not increased. peals from Louisville, as shown in Table 4.7, provides a direct measure of the ef­ The Stages ofAppellate fects video recording has on the period for Case Processing preparing the record. The effects are The first stage of appellate case proc­ salutary: in 1988 the record was com­ essing is preparing the record. The begin­ ph::ted and filed with the court of appeals ning of this stage is the filing of a notice of inless than half the time on average when appeal. During this stage, the documents recorded on videotape (32 days) than when related to the case at the trial level are a narrative transcript is produced by a assembled and the report of proceedings court reporter (67 days). Moreover, when (transcript) is prepared. This is when the record is made by court reporters there court reporters transcribe their notes and are some cases that take an extremely long produce a readable record. The end of the time before the record is produced-for

72 Assessment of Video Recording on Ten Evaluation Criteria

Table 4.7 Time from Notice of Appeal to Notice of Certification of the Record in Kentucky: Court Reporter v. Videotape Records, 1986-89 (Days)

Longest Shortest Mean

1986 Court reporter (N=40) 224 13 87 Video (N=12) 61 19 31

1987 Court reporter (N=69) 516 2 69 Video (N=36) 62 4 30

1988 Court reporter (N=37) 467 22 67 Video (N=52) 75 2 32

1989 Court reporter (N=20)* 91 1 35 Video (N=38) 40 23 31

* Data for January 1, 1989 to June 30, 1989 Source: Clerk, Court of Appeals

example, the longest times for these cases ton. (Data from North Carolina were not in 1986, 1987, and 1988 were 224,516, available.) The chart on the left shows the and 467 days, respectively. The longest distribution of completion times for a set time required to certify a videotape ap­ of appeals filed in Pontiac (Median=54 peal, by contrast, was 75 days. These days). The next chart shows the comple­ data, then, confirm the expectation that tion times for a set of cases from Kalama­ using videotape for the appellate record zoo (Median=28 days). The middle chart shortens the first stage of the appellate shows the completion times for a set of process and are consistent with judge and video-recorded cases sent out to the tran­ lawyer anecdotes about occasional, ex­ scription service from both Pontiac and ceptionally long delays before the record Kalamazoo (Median=22 days). The charts can be obtained from court reporters. on the right show the time needed to complete transcripts for civil and criminal Comparison of appeals in Vancouver (Median= 117 and Transcript Preparatioll 44 days, respectively). Time for Nan·ative Records Each set of cases on which the charts Figure 4.5 illustrates how long it are based was obtained by different meth­ takes to prepare transcripts for applt".. ,~'s in ods for each location, owing to differ­ the study sites in Michigan and Washing- ences in record keeping and the availabil-

73 I

VIDEOTAPED TRIAL RECORDS

Figure 4.5

Time to Complete Appellate Transcripts: Comparison of Court Reporter and Transcript Service Performance in Michigan and Washington

Days Days

240 240 240 230 90% 230 50% 220 75% ?~~I~ 220 scripts 210 50% com~ 210 } pleted within 200 25% these 200 days 190 190

180 180 170 176 { } 170 120 120

110 117 110

100 104 100

90 90 80 80

70 74 70 69 60 64 64 60 54 50 50

40 43 44 40 36 30 30 26 28 20 25 20 19 10 10 o ~--~------~------~------~~------~--~ o Pontiac Court Kalamazoo Pontiac and Vancouver Vancouver Reporter(Civii Court Reporter Kalamazoo Court Reporter Court Reporter and Criminal) (Criminal) Transcription (Civil Cases) (Criminal Cases) N=235 N=43 Service (Civil N=15 N=28 & Criminal) N=63

14 Assessment of Video Recording on Ten Evaluation Criteria ity of data. The set of cases from Pontiac transcripts are prepared more quickly in was obtained from the clerk of the court Kalamazoo, almost as quickly as the tran­ and represents all cases (civil and crimi­ script service prepares them. The reasons nal) that were disposed in 1988 that had a for this-the management initiatives notice of appeal associated with them, undertaken in Kalamazoo-were dis­ and that had a record of the transcript cussed in Chapter 2.37 completion date. For these cases, the These data confirm that delay in tran­ transcripts were completed by court re­ script production has decreased in Michi­ porters.33 The cases for Kalamazoo in­ gan for cases that have been videotaped. clude only criminal appeals and represent More interestingly, however, the data a sample (every fifth case) from a pool of show that transcript production times in criminal cases for which an attorney was Kalamazoo are much shorter than Pon­ apl10inted to represent an indigent defen­ tiac, presumably because of differences in dantonappealin 1988 and 1989.34 The set the way court reporting is managed. Thus, of cases from the transcript service repre­ the data also suggest that transcripts may sents all orders for transcripts received by be produced as quickly with traditional them from the courts during two different court-reporting methods, if the court-re­ periods in 1988 and 1989 (January I-June porting system is managed to achieve that 30, 1988, and January I-April 31, 1989).35 goa\. The data from Vancouver were obtained from a report prepared by the office of the Effect of Using Videotape administrator for the courts in Washing­ Oil Overall Appellate Case ton, and they include all appeals of each Processing Time in Kentucky type for which transcripts were completed Videotape was introduced in one in 1988. (Washington records these inter­ courtroom in Louisville just before 1985. val data as a matter of routine in the By mid-1987, more than half ofthe court­ automated case record system main tained rooms were making videotaped records, by the state for the appellate courtS.)36 and by 1989 all cases filed in the Jefferson Thedatadisplayed inFigure4.5 show County Circuit Court have a videotape as a marked difference between the time it the record of proceedings. Figure 4.6 has been taking to prepare transcripts from shows the pattern of video recording video recordings in Michigan and how installation. Figure 4.7 shows the changes long it has been taking to have transcripts in the average number of days to complete completed by court reporters in Pontiac the appellate process, and the average and in Vancouver. number of days to complete each of the The extremes for transcript produc­ three major stages that make up the total, tion time shown in Figure 4.5 also con­ over the years when video recording in firm the war stories told by judges and Louisville expanded. attorneys about occasional very long de­ During the period when videotape lays. The figure also shows the difference installation expanded to 100 percent of between Kalamazoo and Pontiac; i.e., the courtrooms, the time to prepare the

15 ------

VIDEOTAPED TRIAL RECORDS

Figure 4.6 Figure 4.7

Increase in Video Installations Kentucky Appellate Case­ (Louisville) processing Time Intervals, 1986-89

Number of Courtrooms Days 20 500 Total Time 16 400 ?--_-4-----... 15

300 10 Briefing 200 t:=~::==::::::=&-:::::::::..... 5 Deliberation 100 Record Preperation

a L-_____~ _____~ ____~ O~~~--~----~---k--~ 1984 1985 1986 1987 1988 1989 1986 1987 1988 1989 Years Years

record has steadily decreased. The over­ hypothesis to explain why these data do all case processing time remained steady not reflect the trends that are predicted in for three of these years and then dropped interviews. During the period when ap­ in 1989. This is consistent with what was pealed cases that used videotape increased, predicted by the policymakers in Ken­ rules relating to the appeal of pretrial tucky. motions to suppress evidence also The data for the second stage of the changed. The rule change increased guilty appellate process show a pattern that would pleas, because defendants who did so did not have been predicted from the inter­ not lose the right to appeal adverse deci­ views. Interviews suggest that the aver­ sions on the suppression of evidence. The age time to complete the briefing stage for hypothesis suggests thatrnore appeals are criminal cases would increase as more filed based on the short records of motion and more appeals rely on a videotaped hearings, rather than on longer records of record, because it takes longer for attor­ trials. As a result, the adverse effect of neys to work with videotape appeals. As videotape on time to prepare briefs in a result, more extensions have to be re­ cases that go to trial is being offset by quested. As Figure 4.6 l'Ihows, however, fewer cases being tried and more cases no increase has occurred. The Louisville being appealed from motion hearings with public defender offered the following Sh01t records.38 Data that would confirm

76 Assessment of Video Recording on Ten Evaluation Criteria

Table 4.8 .c Appellate Case Processing Time in Kentucky: Court Reporter v. Videotape Records, 1986-89 (Days)

July-Dec. 1986 1987 1988 Jan.-June 1989 Court Court Court Court Reporter Video Reporter Video Reporter Video Reporter Video

Record Preparation 87 31 69 30 67 32 35 24 (N=40) (N=12) (N=69) (N=36) (N=37) (N=52) (N=20) (N=38)

Briefing 182 188 196 193 183 190 149 142 (N=29) (N=7) (N=50) (N=35) (N=32) (N=46) (N=10) (N=28)

Deliberation 155 154 155 159 181 173 150 141 (N=25) (N=l) (N=54) (N=33) (N=43) (N=29) (N=10) (N=19)

this explanation for the decrease were not need to refer to videotapes instead of a available, since summary records main­ record are slowing the court down. In a tained by the clerk of the court of appeals letter to the president of the National or the appellate defender do not make the Shorthand Reporters Association, one of necessary distincti(m'\ among casetypes. the judges of Kentucky's court of appeals Table 4.8 sh, " the data used in said it was difficult to keep abreast of the Figure 4.6 in table form and compares the appellate workload as a consequence of trends for videotape appeals to trends for videotapes.39 In contrast to this judge's appeals from court reporter transcripts. It view, nine judges of the COUIt of appeals is interesting to note that the trends in the who were interviewed reported no delay briefing stage for both videotape and court in disposing of video appeals.4o They reporter appeals shown in Table 4.8 gen­ generally agreed with their colleague who erally track together, and there is no con­ opposes video recording that staff attor­ sistent pattern of one being shorter or neys and judges had to spend more time longer than the other (and very little dif­ on the case when review of a videotaped ference between them). The time for both record was important to the deliberation, videotape and court reporter briefing but they said it did not cause them to take decreases noticeably in 1989. longer to complete their deliberation and Interview data was less clear about write the decision,41 (Appellate lawyers predicting delays in the deliberation stage in civil practice also said that although of appeals as a consequence of video they experienced difficulty and frustra­ recording. On the one hand, outspoken tion in briefing videotaped cases, they critics of the video system say that the completed the briefs in a timely manner.)

77 VIDEOTAPED TRIAL RECORDS

The data from Louisville tend to confinn several days in having them made, but this the view of the majority of the court of is a rare occurrence. Even this occasional appeals judges. (and minimal) delay is avoided by courts that install third and fourth VTR decks in Trial Court Experience with the courtroom to make original record­ A vailability of Videotaped Records ings for attorneys. The verbatim record of proceedings, In summary, interview statements by although made primarily to serve the judges and attorneys, comments written purposes of appellate review, has uses at by attorneys on questionnaires, and attor­ the trial court level as well. Three are ney responses to structured questions on most common. First, the record is re­ the questionnaire all said the same thing­ viewed by lawyers and judges to confinn an advantage of videotape is the ready findings and orders delivered orally by availability of the record. The attorney the judge and agreements reached by the questionnaire responses from Louisville, parties, when written orders are being for example, are shown in Table 4.9. prepared. Judges will also occasionally Louisville attorneys work as frequently refer to the record to confinn matters ,of with video recording as with court report­ fact when writing their decisions. Sec­ ers (probably more frequently in recent ond, the evidence of witnesses offered at years). trial is sometimes read back in open court during the trial for clarification, empha­ Conclusion sis, or impeachment. The record is simi­ Experience with appeals sufficient larly used on occasion at the request of to measure the effect video recording is juries during their deliberation. Finally, having on the time to process appeals is attorneys may refer to the record during found only in Kentucky. The available lengthy trials to assist them in preparation data from Louisville confinn the expected or presentation of their case the next day. decrease in the time to prepare the record When trials are not completed in consecu­ of the appeal but do not indicate that there tive days, attorneys (and judges) may refer are any offsetting increases in the time to to the record to refresh themselves about prepare briefs or in the deliberation stage the case before the proceedings recom­ of the appellate process, as some lawyers mence, particularly when the hiatus ex­ and judges have predicted. In Michigan, tends to weeks or months. where the videotape is transcribed before By its nature, the video record is it is used by the lawyers and the appellate available more quickly than a court court, there are no data available to di­ reporter's written narrative.42 In practice, rectly compare the stages in appellate the vIdeotaped records have proved to be case processing for appeals filed from quickly available. When lawyers are videotape andcourtreporterrecords. The provided personal copies of videotapes in transcription service, however, reliably the fonn of dubbed copies, some attor­ produces transcripts within 30 days for neys have experienced delays of up to nearly all of its work, and no recorded

78 Assessment of Video Recording on Ten Evaluation Criteria

Table 4.9 louisville Attorney Responses on Record Availability Question "How Often Has a Videotape Record or Transcript Ordered from a Court Re­ porter Not Been Available When It Was Supposed to Be?"* Never/ Rarely Occasionally/Frequently

Videotape not available (N=296) 91% 9%

Transcript not available (N=314) 58% 42%

*Table refers to Questions 11 and 16. case took longer than 70 days. By con­ reported few equipment malfunctions over trast, traditional court-reporting methods years of operation. 1~10re frequent were do not result in reliably short times for reports of equipment problems in the sites transcript production, with occasional during the first few days or weeks of extremes that are disconcerting. operation. In Kalamazoo and Pontiac, for example, mechanical problems included System Reliability a failure of an audio computer chip in the main control box, blue streaks on the System reliability with video record­ video monitors due to excessive light ing is determined by the frequency of exposure, and lines on monitors when one equipment malfunctions and disruptions camera failed. When these problems and delays in court proceedings due to ()ccurred, the remaining audio chips and necessary repairs. Is the system ever associated microphones in the first case inoperable? If yes, how often is it inoper­ and the audio component of the system in able and for what duration? If repairs are the second and third cases produced an necessary, how quickly are they initiated audible audio record. The problems were and completed? How does the court pro­ corrected either by equipment replace­ ceed, if at all, during these occasions? All ment within a day (audio chip), equip­ of these questions address system relia­ ment adjustment within a day (excessive bility. brightness), and camera replacement The information gathered in the within a day (camera failure). evaluation process, including interview The experience reported by judges results and attorney survey results, con­ and court staff in other sites is similar. sistently indicate that the video recording Few mechanical problems have occurred, equipment being used is very reliable. usually soon after installation, and when Court personnel in most of the sites have they did occur the systems rarely caused

79 ------

VIDEOTAPED TRIAL RECORDS disruptions or failed to produce a record, out what was said by adjusting the vol­ nor did they require personnel substitu­ ume. tions or replacements in order to continue Reliability of recording has been court proceedings. The court in Raleigh compromised most seriously by operator was one of the exceptions. The clerk there errors, and some of the equipment fea­ reported, "In the beginning there were tures that contributed to these problems aright many bugs in the system," and that have been corrected. Recording equip­ the video recording system could not be ment originally incorporated manu­ used for two days. facturer's automatic rewind features: a When mechanical problems have tape that ran out would rewind automati­ occurred, necessary repairs have been cally, and testimony previously recorded made quickly, either by a member of the would be recorded over. On one well­ judicial staff or by a vendor's representa­ publicized occasion, so much of the rec­ tive. Some judges report that through ord was lost when this occured that a communication with the vendor and after mistrial was declared. In addition, the some experience with the equipment, court vendor originally used passive warnings personnel are capable of making adjust­ (lights) to indicate when the equipment ments and corrections in the system. In was not recording. Both the automatic one court, this inel uded identifying a faulty rewind and the passive warning features computer board in the main system con­ ofthe equipment on occasion have caused trol box and replacing it with a new board trial records to be incomplete. that was sent by overnight mail. While the equipment is simple to Audio dead spots-areas in the court­ operate, some training is required. There room where the audio system does not is no safeguard against failing to tum the pick up sound as thoroughly as it does in equipment on and starting the record mode, all other areas-have been mentioned in except care and paying attention. Just as interviews. Adjustments in microphone courtroom participants must look to see if placement corrects this problem in most the court reporter is present in the court­ cases. To assure consistently good audio room before beginning the session ofcourt, pickUp, court participants are discouraged so they must check to see if the video from wandering around the courtroom recording equipment is turned on. and speaking while walking away from Since no system of reporting is free the witness stand or jury. Most attorneys of problems with reliability, including the who mentioned this during interviews familiar court reporter method, videotape indicated that these constraints help them reliability must be compared with the correct bad habits, such as speaking with reliability of traditional court reporting. their backs turned to the jury. In any case, While interviews and anecdotes help to the dead spots and wandering affect the understand the nature of problems and uniformity of the recorded speech-its uncover experiences that are frequent and vol ume or clarity-but a listener can make consistent, the significance of the reports

80 Assessment of Video Recording on Ten Evaluation Criteria is more difficult to detennine. In order to record from being made. Repairs, when assess reliability of video recording in a necessary, are made quickly, ~nd adjust­ more meaninGful way, questions were ments and corrections can often be made included in the attorney survey that al­ by judicial staff. Since proceedings typi­ lowed comparison of attorneys' experi­ cally have not been disrupted, substitute ences with and attitudes about the relative personnel have not been necessary. reliability of video recording and the Human errors have caused more prob­ familiar court-reporting method. lems than has the proper functioning of The attorney surveys included the the equipment itself. Mechanical aids question, "How often haG a proceeding have been developed to help personnel been delayed or has a proceeding been avoid these errors (e.g., VTRs no longer interrupted because video equipment did have an automatic rewind feature, and not function properly?" Ninety-two per­ audible warnings are replacing passive cent of the respondents indicated that this indicators of operational problems.) A "never" or "rarely" occurred, and 8 per­ series of lights and other monitoring sig­ cent said it occured "occasionally" or nals indicate that tapes are in the VTR and "frequently" (total n=899). are recording speech and images in the A similar question was asked of at­ courtroom. Other signals visible to both torneys regarding court reporting. In judge and counsel indicate that the system answer to the question, "How often has a has been turned on. proceeding been delayed or been inter­ rupted because a court reporter was late, Obtrusiveness unavailable, or needed a break," 74 per­ cent of the respondents indicated that this This evaluation criterion includes the "never" or "rarely" occurred and 26 per­ degree to which video recording affects cent that this "occasionally" or "fre­ courtroom decorum, alters courtroom quently" occurred (total n=984). Table procee;tings substantially, or influences 4.10 breaks down the results by site. the behavior of courtroom participants. Attorneys also indicated the extent to Infonnation about obtrusiveness is drawn which they agreed or disagreed with this from interviews of judges and attorneys, direct statement: "A courtreporteris more comments by attorneys written on survey dependable than video equipment." The questionnaires, and personal observations responses indicate a predominance of made by the project staff in courtrooms favorable attitudes about video recording wh ile proceedings were being cond ucted. reliability, as shown in Table 4.11. The cameras used for the system are In summary, attorneys and judges small and are fixed high on the walls, who use the systems consider them reli­ typically in the front and back of the able; and mechanical difficulties, if and courtroom. The microphones are quite when they occur, rarely prevent court small and are built into or attached to proceedings from continuing or prevent a existing furniture. The microphones are

81 VIDEOTAPED TRIAL RECORDS

Table 4.10 Attorney Experience with Trial Delay with Video Recording and Court Reporters

Never/Rarely Occassionally /Frequently

All sites Video1 91.9% 8.0% Court reporter2 73.7 26.3 Vancouver Video 91.8 8.2 Court reporter 71.4 22.6 Raleigh Video 67;9 5.7 Court reporter 78.9 21.1 Louisville Video 85.3 14.7 Court reporter 80.3 19.7 Pontiac Video 95.3 4.7 Court reporter 62.6 37.4 Kalamazoo Video 99.3 0.7 Court reporter 67.9 32.2

I "How often has a proceeding been delayed or has a proceeding been interrupted, because video equipment did not function properly?"

2 "How often has a proceeding been delayed or been interrupted because a court reporter was late, unavailable, or needed a break?"

Table 4.11 Attorney Responses Comparing Dependability of Court Reporters and Video Recording

"A Court Reporter is More Dependable Than Video Equipment"

Vancouver Raleigh louisville Pontiac Kalamazoo

N=117 N=148 N=307 N=208 N=133 Agree 35.1% 44.6% 42.0% 41.4% 39.9% Disagree 64.9 55.0 58.Q 58.7 60.2

82 Assessment of Video Recording on Ten Evaluation Criteria narrow, black, cylindrical devices that are speaking style. The purpose typically is attached to counsel tables, jury box rail, to be more effective in represeqting their podium, witness stand, and bench. No client, particularly if a jury is involved. special lighting is required to operate the In Kalamazoo, the video courtroom system. If lighting is not adequate at the has a monitor that is visible to attorneys time of installation, one or two additional and others who participate in the proceed­ light fixtures similar to those already used ings. This was reported to be a distraction in the courtroom may be added, but for to some attorneys. most courtrooms this is not necessary. Some judges report that they occa­ Microphone placement is dictated by sionally must remind counsel to avoid existing courtroom design and the need to speaking too far behind the podium or keep each microphone zone independent. counsel table or to avoid speaking from Modifications of the courtrooms have not locations that experience shows are been required. "conflict zones" between two micro­ Attorneys who have been interviewed phones. When speaking from these spots, indicate unanimously that the cameras the dominance of one microphone is not and microphones are not distracting ei­ well established, and volume and picture ther to them or to clients, jurors, or wit­ may fluctuate, or the camera may not nesses. Other than the reading of a state­ show the speaker. ment at the beginning of proceedings in some jurisdictions by the judge explain­ Preservation of the Record ing the use of video equipment as a pilot project, the use or presence of the equip­ Videotaped records ofcourt proceed­ ment does not interfere with or disrupt ings, like the paper notes of comt report­ court proceedings. Attorneys generally ers, must be preserved for as long as report that court participants forget about statutes or court rules require. Although the system very soon after proceedings owners of home video recordings have begin. been warned that deterioration in their Most attorneys and judges who were tapes could occur within five years after interviewed felt that courtroom decorum they are made,43 the technical research and demeanor, when it is affected at all, is relied on by archivists, and the experience improved with the use of audio-video of broadcasting, suggests that a 20-year equipment. Attorneys report that conduct minimum life can be expected for record­ by judges during proceedings is less likely ings on today's high-quality tape. to be inappropriate or questionable with Ampex Corporation, a leading manu­ an audio-video system making the record. facturer of videotape, guarantees that its Judges report the same thimg about attor­ product can be expected to function for 25 neys. Many attorneys report that they use years.44 According to Eric Mankin, of tapes of proceedings in which they are Electronic Media, recordings made over participants to review and modify their 25 years ago with what is antiquated tech­ courtroom appearance, demeanor, and nology by today's standards (on 2-inch

83 VIDEOTAPED TRIAL RECORDS

Table 4.12 Statutory Requirements Governing Verbatim Records Preservation* ------Offense/Court Preservation Period (Years) Kentucky All Courts 5 Michigan Felonies 15 Other Offenses 10 District Court 6 North Carolina Superior Court 10 District Court 5 Special Proceedings 1 Juvenile Proceedings 90 Days Washington Criminal Cases 15 Civil Cases 7 * Refers to untranscribed notes, tapes, and recordings.

tape), "have suffered no detectable of authority, therefore, supports the no­ changes through the years."45 Today's tion that 20 to 30 years is a conservative videotape, in the 3/4-inch fonnat, is made expectation for videotape longevity, if with a polyester-based material that is tapes are properly handled and stored. more stable and durable than the cello­ Table 4.12 shows information pro­ phane-based early tapes.46 The National vided by personnel in the state court AIchivesreports that an unpublished study administrator's offices of Kentucky, by the National Bureau of Standards and Michigan, North Carolina, and Washing­ Technology on the longevity of ekctro­ ton about how long COUlt reporter's notes magnetic tape concludes that tapes manu­ must be preserved in their states. Fifteen factured with modern techniques can be years for criminal proceedings in Wash­ expected to last 20 to 30 years with rea­ ington and Michigan is as long as any sonable care.47 These findings are ac­ record must be preserved in the study knowledgeo by the National Center for sites. Film and Video Preservation as well, Where state statutes require preser­ "While there is evidence that tapes pro­ vation for 20 years or more, video record­ duced in recent years may retain an ac­ ing would not appear to be appropriate ceptable signal for at least twenty to thiIty unless records retention practices were years and possibly for as long as one revised. In the states studied, however, hundred years, there does not yet exist a the longevity of videotapes should not be means to guarantee a shelf life equal at a concern, if we assume that proper care is least to that of safety film. "48 The weight taken in their storage.

84 Assessment of Video Recording on Ten evaluation Criteria

Videotapes are more susceptible to to be mentioned by attorneys and judges damage or deterioration than court as either an alternative or complementary reporter's paper notes or narrative tran­ technology to video recording. Since scriptions. They must never be exposed video recording does not require a court to electromagnetic fields, they should not reporter and CAT is a way that court be left in direct sunlight, nor stored in reporters can produce written transcripts rooms where the temperature fluctuates more efficiently, these systems might be severely. Storage rooms should not be viewed as competing technologies. Un­ hot, and the ideal conditions for storage fortunately, court officials and court re­ are temperatures in the lower 70s F. with porters themselves tend to express the humidity near 45 percent, ± 10 percent. extreme view that implementation ofvideo Tapes should be rewound onto the take­ recording will exclude the continued use up reel on the cassettes after playing and of court reporters. This need not, and stored with the take-up reel down. probably should not, be the case. The view that the technologies compete is Policy Flexibility and based on the assumption that both ap­ Integration with Other proaches would not be developed to an Technology appropriate degree in a modem court­ house. It is true that the technologies Policy flexibility relates to the court's compete in the sense that they are two dif­ ability to change between systems for ferent approaches to producing virtually making a record. The video recording instantaneously a usable form of the rec­ systems are self-contained and would ord. The respective advantages of video replace other types of recording systems, recording and CAT technology are so fun­ or operate in conjunction with them, in damentally different, however, that a de­ anyone courtroom. The systems are not cision to install video recording in one or portable. Although there is nothing about more courtrooms need not interfere with the equipment itself that precludes having improving CAT capabilities in court­ a court reporter in the courtroom to make houses. the record, courts can obtain funding to While video recording might be less purchase video recording equipment by expensive and easier to use at its fullest showing that it is less expensive over the potential for routine cases in the court­ long run than employing court reporters. house than is CAT, it does not provide the This means that one or the other system special advantages that CAT could offer would normally be used, but not both in to a courthouse and bar. Modem CAT the same courtroom. technology offers potential advantages that should not be overlooked in.a modem Video Recording and CAT-Brief courthouse, and its tandem use with video Comments on Respective Advantages recording appears highly desirable. Unlike !twas not uncommon during the study CAT technology, video recording cannot for computer-aided transcription (CAT) link the process of making the record of

85 VIDEOTAPED TRIAL RECORDS trial proceedings with automated data the appellate record; and the educational processing, nor can it offer to persons uses of videotapes. with hearing or speech disabilities some of the special benefits of CAT' s real-time Flexibility translation capability. In the near term, it Trialjudges in the courts where video would make sense for courts to explore recording is used appreciate the flexibil­ some mix of both technologies and close ity video recording offers them in sched­ the door on neither. uling and conducting hearings. Trials can continue beyond scheduled adjournment Integration with Video Depositions without inconveniencing court reporters, and Closed Circuit Television and short matters can be scheduled early Video recording for making the trial in the day, or at any time it is convenient record can be integrated with other uses of for the judge and the lawyers. Judges also video technology. Attorneys speak fa­ notice that they now "go on the record" vorably of the convenience ofhaving video more extensively, and as a result dis­ playback equipment available in the court­ agreements among the parties about what room when videotaped depositions or was ordered or agreed to can be more other videotaped evidence will be used. easily settled. Figure 4.8 presents com­ There is also potential to integrate video ments from trial judges that are typical. recording for making the trial courtrecord Court administrative staff and law­ with such applications as closed-circuit yers also report changes in the way they arraignments or remote appearance of are able to use their time. The monitors parties. Some of those applications, in located in offices around the courthouse turn, are being used in conjunction with allow them to work on other tasks inter­ digital transmission of court data and FAX mittently, while keeping an eye and ear on documents. the monitor. Some clerks are able to maintain the log of proceedings while Effect on the Court System working in offices adjacent to the court­ and Legal Practice room. The trial court administrator in Raleigh, for example, follows the calen­ Four characteristics of video record­ dar call from her office as it takes place in ing figure prominently in the effects video the presiding courtroom. She is thus able recording has on the court system and to keep track of what is occuring while legal practice. These are the flexibility remaining in her office. If the presiding afforded the trial judge by not having to judge needs assistance with a scheduling depend on a court reporter to make the problem, the trial court administrator is record; the instant availability of the rec­ aware of it. Attorneys were observed ord; the recreation of courtroom events in keeping track of the progress of the calen-

86 Assessment of Video Recording on Ten Evaluation Criteria

Figure 4.8 What Judges Say About Flexibility of Video Recording* • liMy reporter didn't like to stay past five o'clock even if there is just one more witness to go. I can now plan my docket better, more efficiently." • "I would not go back. It makes such a difference in the number of cases I can schedule." • "The video system is always available; I don't hesitate to make a record." .. "1 now see no reason to talk with attorneys off the record." • "1 noW have more control over my time because I'm not dependent on others." "Source: Interviews with trial judges in Louisville. Each comment is from a different judge.

dar while conducting other business in video courtrooms, the appropriate portion some of the court's offices in both Van­ of the proceeding is now played back to couver and Raleigh. the jurors. Judges and lawyers say the appropriate parts of the record can be Availability of the Record located more quickly than a court reporter Being able to obtain a copy of the can find the passage in notes. At the record quickly and inexpensively allows appellate level, staff attorneys mentioned lawyers and judges to change their prac­ that the ready availability of the record tices in helpful ways. Lawyers say they was very useful for expediting motions are able to use copies of the record to referred to the appellate court for emer­ confinn oral findings and orders of the gency rulings on matters in progress in th~ judge more frequently than when they had trial court. Figure 4.9 includes comments to order a transcript. Judges refresh their judges and lawyers have made about the memories about what was said in court advantages offered by the ability to quickly after some time has gone by and review replay videotape in the courtroom. evidentiary matters while writing opin­ ions. Lawyers will review what occurred Recreation of Courtroom Events during pretrial hearings, or on previous (Record Faithfulness) days of trial, in preparing for trial or at the The video record gives the viewer a trial itself. Videotapes are also used to more accurate understanding of precisely satisfy juror requests to have testimony what occurred in court. Since that is the read back. When these requests occur in rationale for having a record in the first

87 VIDEOTAPED TRIAL RECORDS

Figure 4.9 Comments on Playback in Court for Jurors

• The replay opportunities for jury consideration is a strong point. As is reduced costs of transcripts. (Q. 3293) • In the worst case, it takes me ten minutes to find the right part of the tape to play back for the jury. (Trial Judge) • What trial judge or lawyer has not gritted his or her teeth while the stalwart court reporter droned on, doing his best to read back the "Q & A'S" from his notes, to the everlasting boredom of all. The ability to play back such testi· many directly in "real time" with all the factors affecting credibility visible once again for the jury, is one of the most significant and far reaching chrmges in trial practice brought about by the new video technology. (Trial Judge) • Court reporters can't find and read back their testimony so quickly when the jury wants it. (Prosecuting Attorney)

place, an opportunity to improve the whom the project staff interviewed indi­ quality of justice is inherent in the ap­ cated that the videotapes are particularly proach. Nonverbal behavior of judges or useful to them for self-improvement. In lawyers that is prejudicial, but would not addition, the tapes are used within law normally be preserved in the narrative firms to educate younger or less-experi­ form, may be raised on appeal with sup­ enced attomeys. Some lawyers reported port in the video record. Better, lawyers bar association plans to use videotapes of and judges say the video record has a trials for public education regarding the positive effect on their behavior in the court system and court procedures: se­ courtroom, and thus the effects of video lected videotapes would be used by judges are preventive as well as remedial. (One and attorneys when they appear before judge became aware through the camera various social, voluntary, or service groups of his habit of tapping a pencil and frown­ in the community. Likewise, some men­ ing when he thought a witness was not tioned that school systems would proba­ telling the truth and began to guard against bly appreciate the use of videotape of the habit.) Figure 4.10 is illustrative of actual proceedings for instructional pur­ typical favorable attorney comments about poses. the effects of video recording on trial practice. Concerns About Effects of Videotape on Legal Practice Education There are concerns as well, however, Videotape is particularly well suited about how videotape records might be to educational uses, and many attorneys misused, to the detriment oflegal practice

88 Assessment of Video Recording on Ten Evaluation Criteria

Figure 4.10 What Attorneys Say About Positive Effects of Video on Trial Practice

• I think judges' attitudes toward attorneys are more "controlled" in courtrooms where video equipment is used. (Q. 3038) • I conducted the first jury trial in the Oakland Circuit that proceeded with video recording. I said then, and repeat, that it has no equal in preparation assistance for the next day, technique improvement and educationai benefits. (Q. 3322) • There are certain judges on the bench that display questionable judicial tempera­ ment. Videotape is an excellent mechanism for the supreme court to monitor this highly sensitive aspect of the courtroom. Video recording should not be discretion­ ary for the judges-all proceedings should be videotaped. (Q. 3252) • You have overlooked the improvement in the performance of judges that will result. Over time the use of tapes by the appellate courts to review the trial courts will produce a higher degree of justice. All trials should be videotaped. (Q. 1034) • The video is great because you can "see" what happened. It also has positive advantages for tactical use during trial, i.e., easy review of testimony. (Q.253) • All open court proceedings should be videotaped and kept for a set period. Judges and attorneys have become too inclined to go "off the record." Videotapes should be required or part of the record or appeal. (Q. 1207). • A videotape reviewed by the court to identify some uncertainty in this proceedings is the best form of appellate review. (Q. 1113).

as Figure 4.11 illustrates. Some attor­ the video record but is not preserved, or neys fear that appellate courts may usurp not preserved as effectively, in a narrative the prerogatives of the trial judge and record. Appeals made by sentenced de­ jury. Some appellate judges report that fendants from a plea of guilty-claiming they would prefer to work with the "cold" that their waiver was not made know­ record in most cases, so that they would ingly, or that they were incapable of not be distracted or "tempted" to be inap­ understanding its significance-are aclass propriately influenced by appearance or of appeals where appellate judges have demeanor of witnesses. Both race and found that seeing and hearing the pro­ manner of dress were mentioned by ap­ ceeding has made them more secure in pellate judges as things they "do not need their decisions. to know" about witnesses. On the other Some lawyers have also raised ques­ hand, appellate judges also reported that tions about whether certain uses of video­ occasions arise when the specific issue tape at the trial level may prove improp­ they are asked to rule on is preserved in erly influential. Showing selected por-

89 VIDEOTAPED TRIAL RECORDS

Figure 4.11 Concerns Attorneys Have About Appellate Review • I think you need to survey appellate court judges to see if they really can keep from second guessing the trial court on issues of credibility and demeanor of the witness. (Q.4) • Historically the appellate court has not looked at the demeanor of witnesses in making its evaluation of the record. I think video records will alter that rule and that such an alteration will change our trial system greatly. (Q. 236) • Will the use of videotapes now allow appeals courts to review issues of "credibility" which have traditionally been left to the province of the "trier of fact." (Q. 4151) • My only concern with video is that appellate judges might be influenced more by personality, emotion, etc., than by actual cold written transcript of proceedings. I would like to know how other attorneys feel. (Q. 1224) • It is also probable that appellate judges will use the tape to try to weigh the credibility of witnesses rather than review only the evidence. I would be more interested in a court reporter with a real time transcription system. (Q. 2003) • Doubt that justices actually review videotape on appeal. (Q. 2111) • Since the reviewing court would be reviewing witnesses actually testifying, it may have a tendency to begin judging "credibility" of witnesses, which is the province of the trial court ... for this reason videot<1pe may be detrimental. (Q. 3333)

tions of videotapes to jurors, for example, recording introduces new issues to be has been questioned. The question con­ resolved by the higher courts. Whether cerns whether additional psychological specific uses of video recording will prove weightrnay be given by the jury to a part contrary to good legal practice is some­ of the testimony they se~ and hear during thing to be determined by the courts them­ a replay that is not balanced by seeing and selves. hearing the related testimony. If direct In the meantime, it is instructive to testimony is replayed, for example, should consider results of two of the questions a replay of cross-examination also be included in the attorney survey. One required? question asked attorneys the extent to which they agreed or disagreed that Summary "having videotaped records of court pro­ The concerns illustrate that not all of ceedings imprOVes the quality of litiga­ the effects ihis new dimension in court tion." On this question, attorneys were records brings to the legal environment evenly divided. About half of them agreed may be positive. If nothing else, video with the statement (52 percent) and half

90 Assessment of Video Recording on Ten Evaluation Criteria disagreed (48 percent). Table 4.13 shows (55 percent) than thought they were about how the attorneys responded in each site. the same (31 percent). Table 4.14 shows Attorneys were also asked whether, the results for each site, and again, there is "considering everything," video record­ no meaningful difference in responses ing offered more advantages, more disad­ among the sites. vantages, or whether the advantages and disadvantages were about the same. Here Resistance to Video Recording the results are quite different. Very few attorneys thought there were more disad­ A significant disadvantage of video vantages than advantages (14 percent). recording is resistance that may be en­ Many more of them thought the advan­ countered among members of the legal tages were greater than the disadvantages community. That resistance goes beyond

Table 4.13 Attorney Opinions About the Quality of Litigation "Having Videotaped Records of Proceedings Improves the Quality of Litigation"

All Mil Sites Vancouver Raleigh louisville Pontiac Kalamazoo

Agree 51.9% 46.9% 53.6% 50.7% 57.6% 38.4% Disagree 48.1 53.1 46.3 49.3 42.5 51.5

Table 4.14 Attorney Opinions About Advantages Versus Disadvantages of Video Recording "Considering Everything, I Think Making a Video Record of Court Proceedings ... "

All Sites Vancouver Raleigh louisville Pontiac Kalamazoo ---- More advantages than disadvantages 55.1% 53.5% 58% 53.2% 54% 59.3% Advantages equal disadvantages 30.8 29.9 34 26.1 35.3 31.4 More disadvantages than advantages 14.1 16.6 8 20.6 107 9.3

97 ViDEOTAPED TRIAL RECORDS routine resistance to change, and it should in Figure 4.12), for example, the message not be underestimated. Resistance from appeals to lawyers' preference for the court reporters is the most important fac­ traditional transcript (as opposed to a tor, but concerns of judges and lawyers "batch of 90 minute [sic] tapes") and also need to be addressed. suggests that video recording will make the lawyer less "efficient." Resistance from Court Reporters Court reporters are well organized at Video recording is perceived as a both the national and state levels, and they threat to the livelihood of court reporters, apply their resources effectively. This some of whom admit that self-interest un­ was demonstrated during their campaign derlies some of their opposition to video against the use of audio recording in the recording.49 While the scope of this dis­ federal and state courts in the 1980s. cussion precludes evaluating the extent to which video recording reduces present The NSRA hired lobbyists to press the and future employment opportunities for cause of stenotype reporting; issued legis­ verbatim reporters, there is no doubt that lative/regulatory alerts (e.g., Alert, 10/16/ 83) to its members on the progress of the video recording is publicly presented in 50 [Federal judicial Center] test. Articles in this light. Newspaper articles about the house organization, National Short­ video recording headlined "Court Report­ hand Reporter (NSR) appeared often, and ers on Way Out?," "Cameras May Re­ continue to do so as of this date (Fall, place Court Reporters," and "Videotape 1984).53 Record Program Worries Court Report­ ers" are typica1.51 Moreover, leading Shorthand reporters have taken steps advocates of video recording like state similar to those employed for audio re­ court administrator Don Cetrulo, of Ken­ cording to oppose introduction and ex­ tucky, predict the demise of the court pansion of video recording, as Figure 4.12 reporter profession as a consequence of illustrates. In short, shorthand reporters technological advances-"I can't believe are formidable opponents to introduction anyone thinks there will be court reporters of video recording in trial courts. in the year 2000. You've got to get started [making use of available technology]."s2 Resistallce from the Bar and Bellch Court reporters, therefore, closely watch Public opposition to video recording video recording installations and publi­ from the organized bar or from judges' cize problems if they occur. Figure 4.12 associations did not occur in any of the illustrates typical "bad press" headlines study sites. In Kentucky, the Louisville from selected periodicais. Bar Association's appellate practice sec­ Reporters also appeal to the local and tion opposes, in particular, the court pol­ state bar associations to resist video re­ icy ofrestricting appellate review to video­ cording. In an advertisementplaced in the tapes instead of a written transcript, and National Law Journal by the Kentucky the lawyers favor changes to make the Shorthand Reporter's Association (shown rules less restrictive. They present their

92 Assessment of Video Recording on Tl!n Evaluation Criteria

Figure 4.12 "Bad Press" on Video Recording

"Video Failure Produces Retrial in Kentucky" [National Shorthand Reporter, August 1989, p.16] GONE VIDEO "Court Limits Videotape Pilot Many Kentucky trial courts have "gon~ vldeo/' Sites" ThaI's btld news for Ihose who belleve In the benefits 01 C!lurnuotl,' computorlzation. [Michigan Shorthand Reporter, A. fccent study nOled that a prolllerotion 01 computetlzod courts ~i!I rusutc In 1",lor March 1989] tllall.f/tllfefmlllrial"quld\of appeals and teducod t(n,ln casU&,

On thl other hand. Kentucky "Can Blind Justice Survive on aweDalit j1Jdges will lOOn see !helt Bf!ldency decline ItS theY Videotape?" lV'IiewlT'OleandlmlrQ [Oregon State Bar Bulletin, VIdeos on appeal (evcr try to watch a three Wgek Vol. 48, No. 10, lnl,lWlvldDCtapfl?1 August/September 1988] tkNr will video oftod you, the anomey? Are )'tIUfoadytogf .... JP rt)rfJpUtoritodrltigatlon "Court Reporters Challenge suppor" instant ac:ctm Videotape Cost Savings Claims" totranscrip'sandothot • benefit! 01 compUlertzo o [Tacoma News Tribune, tlon?Would Y"'lrt'thor walk oulclaxN'l WIUl a balch 01 September 20, 1988] 90 rrunul8 tapes Insieadol a transcnpl or a tIoppy "Expanded Videotaping of Court disk' Proceedings Debated" Can you aHord [Tacoma News Tribune, to go video? September 9, 1988] The choice I, you,..,

TIII.","ug. lponlOnld by: "Public Defenders Come Out The Kentucky Against \'~deo Appeals" Shorthand Reporters Association [Commonwealth Classic, Vol. 2., No.1,. july 1988] "Videotape Project Criticized in Ky." .... "Videotape Project in Kentucky Hit by Critics" "Fund Raising is Key for [National Law Journal, July 24, 1989] Videotape Defeat" [Michigan Shorthand Reporter, Summer 1989]

views and urge policy changes through sition to the policy on use of videotapes rule-making and policy evaluation com­ for review were being avoided out of mittees in the state, but have not engaged respect for the chief justice. in public opposition. Some appellate In Oregon, however, the Joint Short­ lawyers and judges interviewed in Ken­ hand Reporters Committee of the Oregon tucky indicated that higherlevels of oppo- State Bar approved a resolution calling,

93 VIDEOTAPED TRIAL RECORDS among other things, for a prohibition These views, particularly those predict­ against the use of video recording, or any ing that lawyers and litigants wili "per­ changes in the way Oregon's trials are form," are not uncommonly expressed by reported, without prior consent of all lawyers and judges before they have parties. Several other associations of trial experience with video recording in prac­ lawyers in Oregon "expressed concern" tice. The concerns prove not be warranted over videotaped trials. 54 by experience. Some judges have publicly opposed video recording. As previously noted, Change in Attorney Attitudes with one appellate court judge in Kentucky Experience spoke out often against video recording A basis on which to assess changes in and worked cooperatively with court attorney attitudes about video recording reporters to have his view shared widely. after experience with it was incorporated No parallel to this was discovered in other in the altorney survey: lawyers were asked sites, although it was plain that there is to indicate their opinions about video diversity of attitudes among judges about recording before they had experience with video recording. One trial judge in Mary­ it and to indicate their opinions after gain­ land, for example, has said that video ing experience. The results show that recording twice as many lawyers developed a more favorable attitude after experience with will discourage settlements. It will en­ video recording than did those whose courage lengthy speeches. People in mental attitudes moved in a negative direction. cases will be encouraged to perform, be­ Table 4.15 shows how the attorneys in cause they will know that they are being each state reported their change in atti­ videotaped. "55 tudes.

Table 4.15 Attitude Change by lawyers After Experience With Video Recording

Vancouver Raleigh louisville Pontiac Kalamazoo N=124 N=142 N=302 N=222 N=141

Negative shift 10.5% 12.7% 21.2% 6.8% 5.7% in attitude No change in 40.3 54.2 11.9 55.4 43.3 attitude Positive shift 49.2 33.1 47.1 37.9 51.0 iil attitude

* Table uses data from Questons 25 and 26 in the attorney survey. See Appendix 81.

94 Assessment of Video Recording on Ten Evaluation Criteria

Conclusion mation about video recording will influ­ Opposition to video recording by ence the political action taken by court shorthand reporters is to be expected and reporters, such activities may counter should not be underestimated. Opposi­ misinfonnation and allay anxieties of tion from judges and lawyers that is simi­ lawyers and judges about video record­ larly organized and froni the public is less ing. This is an important element to likely. consider as part of an implementation While it is unrealistic to expect that plan, which is the subject of Chapter 5. any program of education or public infor-

95 Notes

1. Greenwood and Dodge, 1976, 11. Blanck, 1987 (a)(b); Blanck et aI., grouped 26 evaluation crit~ria under five major 1985. headings. Three of the five--<:osts, time, and 12. National Committee on Innovations, accuracy-match three of the evaluation crite­ Kennedy School of Government, Harvard ria used in thi" study. Steelman applied the University, Application from the Common­ Greenwood and Dodge criteria in several stud­ wealth of Kentucky, Kentucky Court of Jus­ ies of court reporting. He used a 12-criteria tice, April 1, 1988 (Application #214) P. 3. approach in one study (Steelman, 1984) and a 13. Foster v. Kassulke, U.S. District 14-criteria approach in another (Steelman, Court, Western District of Kentucky, C-89- 1988). This study conflates some ofSteelman's 160. criteria (e.g., "videotape accuracy" and "tr.. n­ 14. Letter from assistant attorney gen­ script accuracy" into "faithfulness") and does eral Kay Winebrenner to Kentucky shorthand not use others as major criteria, although they reporter Ann Leroy, quoted in Sanders, "Tech­ are addressed in the report (e.g., "suitability nology and the Politics of Change," Oregon foi' education"). In general, however, the State Bar Bul/etin, Volume 48, No. 10, Aug/ criteria are very similar. Sept. 1988. 2. The union of understanding between 15. See, e.g., Blum, "Videotape Project court reporter and lawyer about what is rele­ Criticized in Kentucky," National Law Jour­ vant to the record is central to Saari's argument nal, July 24, 1989, at 7. that court reporters, like lawyers, are profes­ 16. All 9 of 14 judges of the court of sionals. (Saari, 1988). appeals in Kentucky who were reached for 3. Court reporters often make their interviews expressed this view. For some of own audiotapes for a backup they use when them, saying that videotape is "less conven­ they have questions about their notes. The ient" than a transcript is an understatement of president of the Michigan Shorthand Report­ their opinion. ers Association recently argued against this 17. Letter from Frank W. Heft, Jr., and practice. "A profession that is fighting against J. David Niehas to David Greene, May 25, video and audio as a means of making the 1989. This lengthy letter explor.::s the advan­ record should not condone the use of tape tages and disadvantages of videotape in con­ recorders." Hyland, "Presidents Message: siderable detail. It represents a revision of the Fund Raising is Key for Videotape Defeat," opinions Mr. Heft expressed in an article Michigan Shorthand Reporter, summer 1989. published in the Louisville Lawyer, "Pros and 4. See Chapter 2, note 2. Cons of Videotape Appeals," Louisville Bar 5. Walker, 1986b p. 425. Association, Fall 1987. The views expressed 6. Walker, 1986a and 1986b. Saari, in the later letter are more positive. In particu­ 1988. lar, he appreciates the faithfulness of the rec­ 7. Saari, 1988 p. 47 (emphasis added). ord and the utility of a record that "brings a trial 8. Walker, 1986a (emphasis added). or courtroom proceeding to life." 9. Walker, 1986a. Sheisquotingfrom 18. Ibid. NationalShorthandReporter, 1962p.26. She 19. Kentucky officials examined appel­ notes that the selection quoted is also found in late court records and identified 186 appeals in the 1982 version of the pamphlet. 1988 where videotapes were used as the rec­ 10. Walker, 1986b. ord. Of these, in just over half(51 percent) of

96 the cases just one videotape was involved. In 28. In a few cases documented by the another 25 percent of the cases there were two National Shorthand Reporters Association videotapes and the remaining 25 percent had a through their work with the office of public number of tapes ranging from 3 to 20. advocacy, lawyers have been ordered to show 20. Telephone communication from cause why they should not be fin~d for failing Don Cetrulo, Director, Administrative Office to file timely briefs after a 90-day extension of the Courts, to William Hewitt, National was granted. In their briefs they attribute most Center for State Courts, October 17, 1989. ofthe delay to video recording. See Tho '''lGS v. 21. Administrative Order 1987-7. Kentucky, Response to Order to Show Cause, 22. In 1988 nearly 1O,000pagesoftran­ filed December 1, 1988. script were ordered from this individual, the 29. Chapper and Hanson, Study of In­ majority of which (6,089 pages) was requested termediate Courts of Appeal, research in prog­ by attorneys whenever litigation occurred. ress, 1989. Periodically, hundreds of pages of daily copy 30. Given the workload of the office, was provided to the attorneys in the case. the well-publicized problems attorneys have 23. Officials in Seattle, for example, encountered in meeting deadlines for briefs have deternlined that trained personnel are and the experiences noted by attorneys with available to produce transcripts from vide­ poor fidelity of the records, this is somewhat otape at rates comparable to those charged by surprising. An appellate defender office should court reporters. be working with original (not dubbed) record­ 24. Circuit Court Judge Richard Ryan ings of the events, hi-fidelity playback equip­ Lamb, the first judge in Michigan to use video­ ment, high-quality monitors, and the program­ tape, speaks of his change in views in a letter mable real-time search equipment. to the president of Jefferson Audio Video 31. Per page transcript costs in Seattle: Systems, Inc., dated July 27,1989. Ronald J. civil proceedings with a 30-day delivery time Raylor, circuit court judge in Berrien County, is $3.25 for the original and 25¢ for each copy shares the view that a "much better system of page; for a 200-page transcript the cost is quick review and location of specific parts of $700. the trial record must be provided" before tran­ 32. A court reporter transcription serv­ script preparation can be eliminated. ice in Seattle quoted $3.25 (30-day delivery) 25. These data and the costs data about and $4.25 (3-day delivery) per page. Another Kentucky between 1984 and 1988 were ob­ transcription service quoted $14 hourly rate tained primarily from Kentucky's application and three days maximum delivery time for to the Kennedy School of Government for the each tape. Based on a 200-page transcript, the National Committee on Innovations award. respective costs would be $850 and $336 (if The data were examined by the committee\md the transcription service took 24 hours to tran­ field representatives who visited Kentucky in scribe the tape). 1988. 33. A very small number of cases (about 26. The committee was chaired by the 1 in 16) may have had the transcript prepared county clerk (department of judicial admini­ by the transcription service from videotape, stration) and included members of the public since the video program had begun in Michi­ and private bar, the county council, and the gan during this time. The effect of this on the executive's budget office as well as court character of the aggregate data is believed to reporters and trial court administrative staff. be minimal to negligible. 27. The source of the estimate of 400 34. This was the only source that court hours per year is Steelman, 1988 p. 48. personnel could make available for appeals

97 known to have been filed. A sample of every 42. An exception to this is when the fifth case was taken because recording the data narrative is produced simultaneously with the for all cases in the pool required lengthy rec­ evidence by a skilled court reporter using ords searches. computer-aided transcription. This practice is 35. The data for 1988 were collected relatively rare today, because it is a task that during the second half of 1988, under one requires extra concentration that is difficult to ownership of the service, and again in May of maintain by one reporter for more than an 1989, when ownership had changed. The gap hour, it requires skills that most court reporters in the periods covered by the data (July-De­ have not yet mastered, and the equipment cember 1988) was caused by the records ofthe typically used in courtrooms does not support first owner, which were no longer readily it. available when data were collected in 1989. 43. "Consumer Edition: Roberta 36. The cases shown for Washington Baskin" (WJLA television, Washington, D.C., are not a sample, but the entire set. The data are evening news broadcast, Febmary 27,1989). similar to those of 1987 and 1988, as are data 44. Mankin, Electronic Media, vol. 7, for all cases filed in division II of the Washing­ no. 33, Chicago, Ill. (August 15, 1988). Sony ton Court of Appeals, the division that hears makes similar claims about its electromag­ cases from Vancouver. The mean time of the netic tapes. same interval for all of the cases filed in 45. Ibid. division II, for example, was 61 days for civil 46. Ibid. cases and 58 days for criminal cases. 47. Telephone interview with Alan 37. Although the number of cases was Calmes, preservation officer, National Ar­ too small to warrant inclusion in the figure, chives, in Washington, D.C. (June 13,1989). data from Kalamazoo showed transcript com­ 48. ConservationAdministrationNews, pletion times similar to those for Pontiac for a vol. 33, no. 7 (April 1988). IS-case random sample of criminal appeals in 49. See, e.g., Sanders, 1988 p. 13. 1987, before the initiation of the court reporter 50. There is some evidence that the management procedures. demand for the skills of verbatim reporters is 38. Explanation offered by Frank Heft, so great that the practical effect of the intro­ chief appellate defender, Jefferson district duction of video recording on employment public defender. opportunities may be negligible. It is gener­ 39. Letter from Charles B. Lester to ally believed, for example, that the supply of Jerome E. Miller, president of NSRA, Febm­ qualified reporters in California is well below ary 22,1989. the demand. Similar circumstances appear to 40. In addition to the nine judges inter­ prevail in Michigan and are reported in other viewed, two of the judges who were not inter­ arr.as of the country. The use of shorthand viewed hold well-known views about video reporters and computer-aided transcription for recording. These are Judge Michael O. real-time reporting for the hearing impaired McDonald (strong proponent) and Judge (in many service settings outside as well as Charles B. Lester, referred to here. within the courts) appears to be a growth 41. A question not addressed in this industry for reporters. See, e.g., Block, "The paper, but that needs examination, is how Politics of Captioning"; and Grace, "What often the record is central, or even peripherally Captioning Means to Late Deafened Adults," important to the kinds of cases that are typical NationalShorthandReporter,May 1989; Kar­ of an IAC caseload. lovatis, "Captioning the Today Show," Na-

98 tional Shorthand Reporter, August 1989; 52. Blum, "Videotape ProjectCriticized Klink, "Helping a Judge Hear with His Eyes," in Kentucky," National Law Journal, July 24, National Shorthand Reporter, July 1984. 1989. 51. ABA Journal, May 1989; Michigan 53. Walker, 1986(a) note at p. 219. Courts clipping service article, source un­ 54. Sanders, 1989 p. 9. known; and The Capital, August 10, 1989 55. Prince George's County Journal (Baltimore, Md.). (Md.), August 1989, p. 16.

99 Implementation - --- ~ ------

Implementation

he study of video recording in The changes begin with the courthouse the six courts and four states shows work group itself-familiar professional 1l:that it works well in those courts positions (and often familiar people) are and is, therefore, a possible alternative to replaced with machines. In turn, judges, traditional court-reporting methods. The lawyers, and courtroom staff are required first part of this chapter reviews issues to change familiar pattem.s of courtroom that will be relevant to court decision behavior to ensure that the machines rec­ makers who are deciding whether video ord the proceedings faithfully. recording is also possible, and more Video recording also introduces the importantly desirable, as an alternative in possibility of using videotape as the rec­ their own court. The chapter then makes ord that judges and lawyers are obliged to recommendations about implementing work with on appeal. If this option is video recording and concludes by pre­ chosen, there is an additional implemen­ senting excerpts from an appellate tation problem to face-weaning lawyers lawyer's account of experience with 92 and judges from the written transcript of videotape appeals. proceedings. They will be expected to work instead with specialized VTR equip­ Deciding ment, in a different communication me­ About Implementation­ dium, and with different rules for appel­ The Framework late procedure. The change is traumatic for some lawyers andjudges, and disliked Introducing video recording in a trial by virtually all of them. court changes familiar custom, tradition, There are, therefore, two questions and psychological factors associated with that court leaders need to n~solve about creation of the verbatim record, described what uses of video recording are desirable by Louisell and Pirsig as "a dominant in connection with the record oftrial court influence in making the appellate process proceedings. The first is whether video a cornerstone ofAmerican adjudication."1 recording should be used to record the

103 VIDEOTAPED TRIAL RECORDS proceedings in the first place. The most common to all of the study sites and that profound factors relating to that decision appear to be sufficient conditions for are the consequences of replacing court making it possible to undertake video reporters with machines: changing the recording; and second, into factors that basic nature of the courthouse work group, were found in some but not all of the sites. changing behavioral patterns of court­ This second group of factors may contrib­ room personnel, and, not least in impor­ ute to the level of interest in video record­ tance, encountering high levels of resis­ ing in a state. tance from court reporters and from some The conditions that were common to judges and members of the bar. all the sites include these three factors, The second question arises if video which appear to be sufficient for video recording will be an alternative to using recording to take root in a state. court reporters-- it involves choosing between policy favoring use of the video­ • A trial court judge makes a request to tape as the primary form of the record on use video recording, or is favorably appeal, or policy requiring that videotapes disposed to trying it; be transcribed into a narrative transcript. Within this general framework, the • The state's supreme court, especially remainder of this chapter explores the the chiefjustice, responds favorably to issues for court leaders to consider before interest in video recording expressed deciding whether video recording is a by trial court judges; desirable option. This is followed by a discussion of the major stages in implem­ • Video recording is implemented on an entation, grouped according to the organ­ experimental basis in a few courts at a izational level at which they must be time. addressed. The circumstances that may exist in Deciding Whether to Use Videotape a state to give rise to one or more of the to Record Court Proceedings preceding conditions are complex. No Th{; study suggests that jurisdictional consistent set of factors explains why characteristics are not a factor that deter­ video recording is viewed as desirable, mines how well video recording will work but one or more of the rationales or condi­ in a court. Characteristics of the states and tions listed below were found in all the the sites that do appear to have a bearing sites. Most of the factors held true in all of on whether it is possible or desirable to the sites, but none were true of all of them. undertake video recording in trial courts are outlined below. These characteristics • There was a shortage of courtreporters are divided: first, into factors that were in the local court;

704 Implementation

• The cost of court-reporting services Consequently, they are only presented as was perceived as a problem by local facts for court leaders to consider when funding agencies; they assess the feasibility of introducing video recording in their courts. A variety • In the trial courts where video record­ of responses could be made to one or more ing was experimentally introduced, trial of the conditions listed above, and video court administrative personnel were recording is just one of them. not previously involved in coordinat­ This concludes the summary of con­ ing, monitoring, and managing tran­ textual factors that court leaders will want script production; to consider as they assess the possibility and desirability of implementing video • There was a perception by one or more recording. Before turning to recommen­ local judges that court reporters were dations for successful implementation of not providing high quality or timely video recording, however, the perspec­ transcripts, or both; tives of court reporters and the project staff about the limitations of this study • The administrative office of the courts deserve a brief discussion. committed staff and cash resources to support an experimental use of video Court Reporters' Perspective recording in some trial courts; on the Study's Methods and Implications • Court reporters in the experimental Representatives of the National sites were not employed in a multipur­ Shorthand Reporters Association (NSRA) pose capacity (e.g., as confidential served as advisors to this study and pro­ assistants to the trial judges or as in­ vided oral and written commentary on the court clerks); study methods, assumptions, and results at many points along the way. These • There was a perception that problems comments are summarized below, and with the quality, timeliness, or cost of court leaders are encouraged to consider court reporter services was a statewide them in their deliberations about video phenomenon. recording and the findings presented in this report. Research into the underlying causes AnSENCE OF EXPERIMENTAL ME­ for the conditions listed above, particu­ THODS. The study did not experimentally larly those that relate to perceived dissat­ compare the satisfaction of attorneys with isfacltion with court reporters and unman­ court reporters between sites where video aged court reporting in the trial courts, recording has been introduced and sites was beyond the scope of this study. where it has not been considered, or has

105 VIDEOTAPED TRIAL RECORDS

been rejected. Therefore, attorney re­ were in reality shorthand secretaries who sponses to some of the questions that had been placed in situations requiring explicitly or implicitly imply a degree of training and skills far beyond what could be expected of them. Obviously these dissatisfaction with court reportl~rs (e.g., factors would have massive relevant ef­ questions about comparative faithfulness fects on opinions of their worth and the .of videotape and court reporter records, worth of a new system that replaced them. reliability of video recording and court reporters, availability of records) should Therefore, [when findings of the study not be generalized to all court environ­ suggest that video recording compares ments. favorably with court reporting] at the very LIMITATIONS IN ATTORNEY SURVEY least the reader needs to be told not to, and DESIGN. Questions that could have been why not to, draw the same conclusions in situations that are tremendously different asked in the survey were not asked. For from those where the opinions were taken, example, lawyers were not asked whether, as is the case almost everywhere.2 if given a choice, they would have sup­ ported video recording in the first place. IMPORTANCE OF CERTIFICATION PRO­ They also were not asked whether they GRAMS. In three of the four states that were believed improved management of court studied, there is no testing program or cer­ reporting would solve perceived prob­ tification program for court reporters. In lems with court reporting, nor whether the NSRA' s experience, appropriate test­ they would prefer the use of CAT to video ing and certification improves reporting recording. quality and, as a result, makes a difference UNIQUENESS OF KENTUCKY. The con­ in the perceptions of the bench and bar.3 text of court reporting in Kentucky was COMPARING VIDEO RECORDING TO unique, in the opinion of the NSRA, and TRADITIONAL RE1'ORTING Is SHORT­ the factors that contributed to the intro­ SIGHTED. The NSRA believes that court duction of video recording and its contin­ leaders should not only compare the rela­ ued expansion there should not be as­ tive advantages of traditional court re­ sumed to apply elsewhere. porting and video recording but consider the potential advantages of equipping [S]alaries and benefits for court reporters courthouses with CAT systems and pe­ at the onset of video use were nearly the lowest in the nation and such things as ripheral applications that support rapid reporter management, motivation, morale transcription from notes to hard copy, and skills were abysmal. At the onset of provide real-time translations of text pro­ video court reporting in Kentucky, that jected on video screens, have access to state's official court reporters, with few text databases through computer networks , exceptions, were (perhaps understandably and integrate court-reporter stenograph given the state's commitment to theirrole) terminals and court management infor­ decades behind the rest of the nation in terms of their skills and techniques. Many mation systems. Were these applications

106 Implementation developed in courts, the cost benefits of were more favorable to video recording court reporter versus video recording than were Kentucky attorneys. systems would look quite different, i.e., not favorable to video recording. Review The focus of the preceding discus­ Author's View of the sion has been on factors court leaders Court Reporters' Perspective should consider in determining whether a Some of the points raised by the program to implement video recording is NSRA have previously been acknowledged possible or desirable in their state or local in Chapter 2. In addition, the project staff court. Video recording introduces major agrees with the NSRA that this study does changes in the court. A decision to go not compare video recording and the farther and use videotape as the record on advantages and disadvantages of short­ appeal adds an additional dimension to hand reporting enhanced by CAT and also the changes and has unsettling effects on believes that such a study would be bene­ familiar practices related to preparing ficial. It is also true that some attorneys appeals. Three conditions that are proba­ and judges spoke highly of CAT as an bly necessary to implement video record­ alternative or complement to video re­ ing, and seven characteristics that may cording in the courts. Based on the appar­ relate causally to them, have been de­ ent advantages ofCAT, it is recommended scribed. that court decision makers consider those While video recording has gained advantages in their decision and maintain acceptance in the study sites, court lead­ a flexible policy about alternative tech­ ers should keep in mind some limitations niques for court reporting. of the study methodology and character­ The project staff and the NSRA do istics of the sites that may limit how these not agree on the importance of certifica­ findings can be applied to other courts. tion. The disagreement does not extend to The remainder of this chapter dis­ the intrinsic benefits of setting standards cusses recommendations, procedures, and for official court reporters and the impor­ resources required for video recording tance of a training and certification pro­ implementation as well as what policy gram to achieve those standards. But, as court decision makers may want to adopt described in Chapter 3, Michigan does regarding use of videotapes or transcripts have such a program, and video recording as the record for appeal. has been introduced there successfully and has rapidly expanded. Moreover, Implementing attorney responses to the survey were at Video Recording least as favorable to video recording as were the responses from attorneys in other It is assumed that before a court begins sites, and Michigan attorneys generally to implement video recording that fund-

107 VIDEOTAPED TRIAL RECORDS ing has been secured or is known to be all states, but it has been used in some of available to purchase equipment; that there the study sites and may be advisable in are trial judges willing to have video re­ other states as well; items two and three cording in their courts; and that the under­ are necessary activities. taking has the support of the chief justice ORGANIZE AN ADVISORY AND PROJ­ and the supreme court. ECT OVERSIGHT COMMITTEE (OPTIONAL) The considerations to address and (1). This step was taken in Michigan and the recommended steps to take to obtain in King County, (Seattle) Washington, high quality videotape records, a smooth before implementing video recording. transition from traditional reporting to Such a step might be required by enabling video recording, and satisfaction among legislation that establishes funds for video users of the system are interconnected. In recording, and it is useful for identifying the discussion that follows, implementa­ and resolving policy disputes or for re­ tion stages or issues are grouped into three solving political conflict. This step is categories based on the organizational recommended in states where the chief level to which they are appropriate. There justice or supreme court has some ques­ are 12 items recommended for all courts tion about the practical or political desira­ and states to include in their implementa­ bility of video recording. The committee tion pIan. Four additional recommenda­ can be especially useful if there is repre­ tions are made for states that choose to use sentation from legislative as well as judi­ videotape as the record on appeal (items cial branch officials. (3)(1)-(4»,and two additionalrecommen­ REVIEW REGULATIONS (STATUTES, dations are made for states that choose to RULES, CANONS) (2). Courts in some transcribe videotapes for the purpose of states may have laws regulating how court appeals (items (3)(5)-(6». Figure 5.1 records are made that conflict with the use illustrates the recommended implemen­ of video recording, although the regula­ tation stages. It shows the relationships tion may not have been enacted with such among the stages and indicates the issues an objective as an intention. Statutes re­ that need reciprocal communications quiring that a court reporter make a record between state and local officials and proc­ of all court proceedings, or that require esses that are iterative. one court reporter for each judge, are ex­ amples of regulations that may need revi­ Recommendations sion. Other adjustments might be advis­ for State-level Attention able or required where there are regula­ Three activities need to be carried tions that were not intended to restrict the out at the state level by the administrative use of alternative court-reporting meth­ office of the courts in consultation with ods, but which may be inconsistent in judges, lawyers, and trial court employ­ their letter with video recording, or with ees. Item one may not be appropriate for procedures related to video recording, that

708 Implementation

Figure 5.1 Implementing Issues and Recommended Activities

State State and Local Local Responsibility Responsibility Responsibility

Advisory, Planning, r+ Select ----+ Include Local Bar (7) Oversight Committee Vendor (4) (Optional) (1) Install Equipment (8)

Review Laws (2) Adjust Trial and Appellate Court J Decide Who Will Procedure Operate Equipment (9) Determine Policy on Form of the for Appeals (5) Appellate Record (3) Establish Records Management Procedures and Log Formats (10) Videotape Transcript Establish Standards For Judge, Lawyer, and Court Clerk Responsibility for Record Quality (11)

Establish Appeal Tracking System Test System With for Evaluation (6) a Ba<:k Up (12)

the court wants to follow. Regulations tapes of court participants. Courts in prohibiting "cameras in the courtroom" Washington and Minnesota solved this or taking photographs of criminal defen­ problem by applying "protective orders" dants or jurors are typical examples. In to video recordings. Minnesota, court leaders debated alterna­ All states will no doubt have some tive ways to reconcile regulations assur­ adjustments to make in their regulations. ingpublic access to court records with the Finding these and coordinating the proc­ court's desire to restrict access by the ess of drafting adjustments is a task that news media or general public to video- falls to the staff of the administrative

709 VIDEOTAPED TRIAL RECORDS office of the courts or the supreme court. to in the appeal. The transcript is It is recommended that this be undertaken normally used for appellate briefs and early in the planning process. The su­ opinions. preme court's inherent power to regulate the administration of the courts appears to • Permit transcripts to be usedfor briefs provide sufficient authority for special (and paid for by the state in indigent orders or rules the supreme court finds criminal cases) ifthe record ofthe trial necessary or desirable to permit and regu­ court proceedings is 110tfully captured late video recording. (Examples of ena­ within one or two videotapes. bling rules or orders are found in Appen­ No state is known to have adopted a dix E.) policy like this one. Itisrecommended RESOLVE THE POLICY THE COURT for consideration, based on study find­ WILL FOLLOW REGARDING THE FORM OF ings that suggest that the disadvan­ THE RECORD (3). This step is most impor­ tages of working with a videotape on tant for successful implementation. The appeal increase disproportionately as choice is between two major alternatives. more tapes are involved.4 A third compromise approach has not been tried and tested in practice, but Choosing correctly among these al­ warrants consideration. The choices are ternatives is as important to the success of as follows: video recording as the adequacy and cor­ rectinstallation of the equipment itself. A • Use the videotape itself as the record decision to use videotape as the record on rOlltinely used on review (Kentucky's appeal needs to be reasoned through care­ approach). fully-the advantages may not outweigh When this choice is made, p:lblic funds the disadvantages, especially during early are not used to pay for transcripts used experimentation. by appellate defenders in criminal If the Kentucky approach is chosen cases, and if private attorneys arrange (videotape is the record), all of the prac­ for transcri pts made from videotape or tices and habits that are familiar to appel­ hire court reporters to make a second late judges and lawyers are changed: record, the tape is the official record lawyers and judges are restricted in where and citations to the record in briefs they can work; it is slower to move be­ must be made to the tapes, not to pages tween different parts of the transcript; of a transcript. note-taking involves translating spoken words or visual images into written text, • Transcribe videotapes and use the instead of simply copying what has al­ transcript as the record routinely re­ ready been translated; and even the form ferred to on review. of citations is different and requires more When this option is chosen, the tape is words-instead of a note that indicates the official record and may be referred page and line numbers, the citation must "

770 Implementation include a tape number, month, day, year, quality control mechanisms. If there are hour, minute, and second at which the personnel or transcription services located reference begins as recorded on the vide­ near the video courts that are trained and otape(e.g., Tape No. 11111-1, 10/27/'809; experienced in transcribing audiotapes for 14:24:05.) Lawyers reported in inter­ court transcripts (as was true in Michi­ views that listening, stopping, and back­ gan), the transition from court reporters to ing up to find where the cited portion of video is relatively simple. If personnel the record begins is very slow and frus­ must be trained and services developed, a trating, and it disrupts their thought proc­ higher level of court administrative .staff ess. Judges and law clerks report that effort is required. often the cites are imprecise (or incorrect) Depending on which form of the as well, which may indicate that lawyers record is chosen for appeal- videotape are unable to comply with the standards or transcript-implementation steps expected of them. unique to each choice need to be carried One consequence of using videotape out. These are discussed below. as the record, therefore, is that resistance Steps Required in States Where the to video recording increases among Videotape Serves as the Record on members of the appellate bench and bar Appeal. When a videotape serves as the because of the change in familiar prac­ primary record on ap~eal, the planning tices that is required. A second conse­ and implementation involves four unique quence is that implementation is more stages. complex: procedures for filing appeals must be more carefully analyzed and (1) Determine the Type and Quantity changed more extensively if videotapes of Specialized Playback Equipment are not transcribed; the amount of equip­ Needed. Briefing and reviewing cases ment required is greater, and must include using videotape are different and gener­ features not found in standard VTRs to ally slower processes than working with a compensate for more frequent and inten­ printed transcript. Although review can sive use; there is a need to train lawyers be completed using ordinary home video and judges in the proper operation of playback equipment, the work will go specialized equipment; finally, because more slowly and be more frustrating than reviewing the record and writing briefs if specialized equipment is used. Four have such fundamentally different me­ playback system enhancements are rec­ chanics, lawyers should be offered train­ ommended below; as each capability is ing in techniques that will help them make added, review becomes faster and less the transition to videotape more smoothly. annoying to the person reviewing the tape. Having videotapes routinely tran­ The price of a system that includes the scribed for appellate review requires a first three is about $2,400 (equivalent to transcription service and new routines for the cost of 800 pages of transcript at $3.00 ordering and certifying transcripts and per page); the cost for all four is $3,800.

177 VIDEOTAPED TRIAL RECORDS

• Hi-fidelity sound on the playback unit. recording. As the frequency of video­ Tapes are recorded in high fidelity, but taped appeals increases, theneedforplay­ if the playback equipment does not back workstations increases. When vide­ have hi-fidelity, the difference in au­ otaped appeals are rare, and when the dio clarity and dynamic range is great. appellate court judges and law clerks work It can make the difference between in the same building, only one unit is whether parts of the record are audible needed. If judges and law clerks work in or inaudible. offices scattered around the state, as in KentuCky, each judge needs a playback • A monitor, not a television. When a station, even when videotape appeals make TV is used instead of a monitor, the up a relatively small percentage of the commercial programming on the VTR caseload. channel is heard and seen when the VTR is placed in the "stop" mode. This (2) Train Judges and Lawyers in is distracting, and volume when the Operation of the Playback Equipment. regular programming resumes is usu­ Aptitudes and attitudes determine how ally louder than is comfortable for the "easy" it is to operate equipment or per­ listener. form mechanical tasks- by analogy, the steps and sequence for changing a car tire • A programmable fast-forward and may be obvious and simple for many (if -reverse search capability. This allows unpleasant), but there are some who do the reviewer to program the equipment not know how to do it. Experience in the to move rapidly forward or back to a study sites demonstrates that effective designated place on the tape, at speeds training in equipment operation involves greater than normal fast forward or selecting the correct people to train, ar­ reverse. It speeds review. ranging an appropriate time and forum, and retraining or training for new person­ • A 2X review capability. This allows nel as required. In both Kentucky and the reviewer to play tape at twice the Washington, equipment was underutil­ normal speed-to skim pordons of the ized or used inefficiently because training tape. Depending on the voice qualities was hurried and law clerks paid little and how fast the speaker talks, what is attention; and, because equipment is used being said is usually intelligible. This only intermittently, lessons were forgot­ also speeds review. ten between learning and use, or the per­ son trained was no longer employed or The number of required playback was the wrong person to train in the first workstations will depend on the number place. Poor training exacerbates predict­ and location of trial courts with video able complaints and resistance from law-

172 Implementation yers who are required to abandon the two videotapes imposes an unreasonable written word in favor of a less familiar and burden on them and may reql}ire justifi­ less "intellectual" medium. able extensions of time to prepare briefs if a transcript is not available.5 (3) Address the Needfor Training on Since transcription in both the public How to Brief a Videotape Appeal. Be­ and private sectors is inevitable, it is rec­ coming familiar with the operation of ommended that the court ensure appropri­ equipment is only part of a required train­ ate levels of consistency and quality in the ing agenda. Lawyers will need to change transcripts produced. This suggests some work habits and develop new approaches form of quality control and certification. to preparing a brief in response to sequen­ These issues are discussed below in the tial access to information (rather than the steps required when videotapes are rou­ random and simultaneous access that a tinely transcribed for appellate review. transcript allows). Since only a handful of Steps Required When the Videotape attorneys in the world (all of them in Is Transcribed. Courts have two options: Kentucky) have worked on more than a they can contract with private services or few videotape appeals, this is a challeng­ develop the capabili ty within the court. In ing item on the implementation agenda, either case, the court must be involved in but one that needs attention, nevertheless. the developing and regulating of high­ quality transcription services. (4) Provide or Regulate a Transcrip­ tion Service that Meets Acceptable Stan­ (1) Select or Develop a Transcrip­ dardsfor Transcribing Videotape. Some tion Service. Transcription services need transcription will be desirable, even when to be evaluated on four essential criteria: the videotape is the usual form of the accuracy, knowledge of the correct form record on appeal. When trials are lengthy of official transcripts, speed, and cost. and the consequences of appeal are sig­ Convenience and the stability of the nificant, most appellate lawyers say they company (likelihood that they will con­ will arrange to have a transcript made. It tinue in business) are also considerations. is recommended based on the study find­ In some states or cities, there are individu­ ings, moreover, that court policy provide als who have experience transcribing for buying a transcript for use by appellate audiotape records for the court, and court defenders who are involved in an appeal reporters may be interested in contracting of a lengthy trial (more than two or three for the transcription service. The U.S. tapes). The weight of opinion to date administrative office of the courts main­ suggests that requiring appellate defense tains a list of services approved to provide attorneys (who are usually not present at transcripts for federal court appeals (there the trial) to work with more than one or are services approved in all but 17 states.)

113 VIDEOTAPED TRIAL RECORDS

These services may be useful to state makes it possible to evaluate the perform­ courts for transcribing videotapes, as well. ance of the transcript service and to iden­ Where no experienced service ex­ tify sources of problems. It is recom­ ists, the court will need to cultivate its mended that the court adopt the following development, either as a service provided procedures to reduce delay in appellate by the court or as an approved contracting case processing and to preserve data re­ agency. In Pontiac, the court uses one quired for management and evaluation service to make transcripts for appeals purposes. and another (a cOurt employee who has a private transcription service on the side) • Requests for transcripts should be made to make transcripts requested by lawyers in writing and filed with the court by and judges for purposes other than appeal. the attorneys. The case number, date COUlt managers should be aware that of each request, and the requesting transcription equipment for videotape is party should be recorded. A form can specialized. Ordinary dictaphone foot be used for this. pedals should not be expected to work smoothly with any VTR equipment. The court should process transcript Transcriptionists must have hi-fidelity requests and send the tapes and a work VTRs and use monitors instead ofTVs for order to the transcription service by the tape viewing; moreover, an individual close of the next working day. The who has a negative attitude about the date the work order is forwarded to the introduction of videotape records in the transcription service should be re­ court would be an imprudent choice to corded. The work order should specify serve as a transcriptionist, especially if the expected completion date-usu­ the playback equipment the person uses is ally 15 days, no more than 30 days for not designed for the task. very long requests (more than three videotapes). (2) Establish Procedure for Proc­ essing Transcript Requests. Unlike tradi­ • A messenger service or overnight tional court-reporting records, the court package delivery service should be owns and manages the videotape, which used, and the fee for this collected as is the official record. To have a transcript part of the costs. made, the tape must be requested from the court and returned to it. This involves • The transcription service should be court employees in the activities that are required to send or deliver the tran­ required to have a transcript made. While script directly to the attorney(s) in this means new responsibilities for court addition to the court officials who are staff, it also provides an opportunity for required to have it. the court to monitor the number of tran­ script requests, the length of transcripts, • The transcription service should be and the timeliness of production. This required to return a notice to the court

714 Implementation

video records manager attesting to the court or county employees. Moreover, date the transcript is completed and the systems that are under dev.elopment delivered. This notice should include by several vendors, but which have not the number of transcript pages. been in operation and evaluated in a court­ room, should be installed only in tandem • All transcript work orders should be with back-up reporting systems for a entered into a "tickler" system that minimum period of several months. identifies orders outstanding for longer Vendor selection should also address than the period allowed. Court staff contracts for system maintenance after should follow up on these delinquent the warranty period expires. The most orders. When the notice of completion well-established vendor in this field (Jef­ is returned, the return date should be ferson Audio Video Systems, Inc.) charges recorded. 5 percent of the purchase price to maintain the system after the initial one-year war­ Recommendations for ranty period. In states where many sys­ Joint State and Local Attention tems are installed, state officials are nego­ SELECT THE VENDOR AND EQUIPMENT tiating package contracts for all of the TO BE USED IN THE TRIAL COURT (4). equipment, at a lower unit cost. Court leaders who plan to implementvideo MAKE REQUIRED ADJUSTMENTS TO recording in 1990 in a state general juris­ PROCEDURE FOR PROCESSING ApPEALS (5). diction trial court should note that only The requirements for this step are deter­ one vendor has a proven record of success mined by the decision the court makes in installing and providing service for a about whether videotapes or transcripts video recording systems that make a faith­ made from them will be used on appeal. ful record and are unobtrusive and reli­ Using videotape as the record requires able. If this vendor's system has features more changes because details of forms and characteristics of operation that the and procedures developed for cases re­ court finds undesirable (e.g., the voice­ quiring preparation of a transcript by a activated full-screen image that switches court reporter will not apply to videotaped the picture from speaker to speaker, appeals. Procedures for transcribed video­ sometimes described by viewers as an­ tape appeals may also change, but these noyingly jumpy), a court should thor­ changes are more likely to affect trial oughly investigate other options before rather than appellate court procedure. committing itself to video recording with­ Washington's appellate rules governing a out a back-up alternative. "statement of arrangements" regarding It appears unlikely, given the experi­ the preparation of a transcript are an ex­ ence in the sites studied, that video re­ ample of a procedure and a case-process­ cording can be successfully implemented ing interval that is unnecessary and con­ with off-the-shelf components and tech­ fusing in the context of videotape appeals. nical support provided only by the ven­ Each local court, moreover, can be dors of the different components, or by expected to have formal and informal

775 VIDEOTAPED TRIAL RECORDS procedures followed by court clerk's of­ practice in any case.) The data required fice personnel, lawyers, and court report­ for evaluation are not easily retrievable if ers that will not apply to videotape ap­ there is no way to begin tracing all appeals peals. New responsibilities need to be filed at the trial level and no procedure for assumed by court clerk's or court flagging each videotape appeal. The flag administrator's office personnel with must be attached at the time the notice of videotape, since there is no longer a court appeal is filed, and it must follow the case reporter at the hub of the recording and into and through the appellate system. If transcript preparation process. there is a complete inventory of appeals In Washington problems associated filed at the trial level, and a way to distin­ with the procedure on appeal arose with guish videotape from traditional appeals, the very first appeal filed from videotaped it is relatively easy to compare the pace of proceedings, when the lawyer appointed both kinds of appeals at each case-proc­ to represent a criminal defendant received essing stage and overall. Interestingly, in inappropriate instruction from the court none of the study sites was this capability of appeals. That case, a criminal appeal, possible from the beginning of the experi­ had not been decided by late 1989. ment, but Kentucky and Washington made the necessary adjustments after years of Staff from the appellate court should be operation. involved from the beginning in drafting t:i~ videotape plan. No one wants sur­ Recommendations for prises, or delays, when the first case is Local Court Attention 6 appealed. INVOLVE BAR IN IMPLEMENTATION PLANNING (7). The purpose of this step is In short, staff in both the trial and to avoid oversights in planning during the appellate court clerks' offices must exam­ next five steps. Lawyers have a perspec­ ine each activity that will require a video­ tive on the courtroom and court procedure tape appeal, compare the activities for that is different from that of the judges and their fit with existing procedure, and make administrative staff. The quality of plan­ the necessary adjustments. Communica­ ning is enhanced if that perspective is tion both ways, aud with the trial court acknowledged and used. The prosecuting judges' staff, is essential. attorney and public defense lawyers are of ESTABLISH A TRACKING SYSTEM TO special importance since they appear in IDENTIFY VIDEOTAPE AND NON-VIDEOTAPE court so frequently. ApPEALS (6). Experience in all of the sites The priorities of the court and the bar proves a need to evaluate the effects the about the way video recording equipment videotape system is having on the pace should be installed and the procedure that and cost of appeals. (Often, an evaluation should be followed in its operation may requirement is attached to funding, but not always coincide, but inevitably there evaluation of innovations is a sensible will be some room for accommodation

776 ~---I

Implementation between the court's priorities and thosB of possible, with procedures governing court­ the bar. Ajudge, for example, may tend to room behavior. underestimate the frequency and range of DECIDE WHO WILL OPERATE THE attorneys' movement when they speak in EQUIPMENT AND MAKE THE VIDEOTAPE the courtroom and establish requirements LOG (9). Two approaches to system for microphone and camera coverage that operation are used in the sites studied. are incomplete. Or judges may plan to Under one approach, the trial judge oper­ restrict attorney movement to accommo­ ates the equipment (turns it on and off, date the recording equipment and under­ changes tapes) and records on a tape log estimate the degree of resistance they will the time at which key events occur during encounter from the bar or how frequently the court session. Court clerical person­ they would have to interrupt the proceed­ nel perform all or some of these tasks ings to enforce the restrictions on custom­ under alternative approaches. The former ary movement in the courtroom. Joint approach may offer the advantage ofmini­ discussion among the judge, the vendor, mizing costs associated with the number and members of the bar offers potential of court clerical personnel the court for arriving at the optimal accommoda­ employs. Whether cost savings will be tion between behavioral custom and tech­ realized depends on how the court person­ nical requirements for high-quality re­ nel are assigned to carry out other clerical cording. responsibilities related to courtroom op­ INSTALL THE EQUIPMENT (8). This erations. Whether it is possible to use the step requires an initial design based on judge as the equipment operator depends floor plans :md descriptions of the physi­ on whether the trial court judge will agree cal features of the courtroom and cham­ to perform those activities. Some judges bers. This step will usually be required prefer accepting those responsibilities, before a firm price can be obtained from perhaps as a trade-off to obtain funding the vendor. The initial plan may need to for other kinds of clerical assistance (e.g., be modified during installation if circum­ law clerks); while others grudgingly agree stances present themselves that were to the responsibility. Some judges per­ overlooked during the initial design. form the required equipment operation Finally, testing will be required under live activities conscientiously, while others courtroom conditions to determine are more perfunctory in their approach. whether the design works as intended. It was found that some attorneys Video recordings made during a variety object to having the judge operate the of hearings and with a variety of lawyers system. In their view it gives a trial judge and witnesses should be reviewed by an otherwise avoidable opportunity to judges and appellate lawyers. This is inappropriately manipulate the record, in necessary to identhy problems with the ways that would be more visible or diffi­ recording system that need to be corrected cult to achieve when a court reporter makes with technical adjustments or, if that it not the record or when a court clerk is respon-

717 VIDEOTAPED TRIAL RECORDS sible for system operation. Some in­ or more tapes dedicated to that trial. More stances were noted where the quality of complex indexing and storage procedures system operation or the quality of the are required for this approach (as well as recording log were substandard and more switching of tapes by the system needed improvement when these were the operator) than for an approach where a responsibility of judges. (One judge, for single tape is used to record everything example, routinely di~,ables the voice­ presented for the record in the courtroom activated camera feature, so that only one each day (only in unusual circumstances camera is in operation. This results in would one six-hour tape not suffice to incomplete video coverage, although the store the record for each day). audio is complete.) One of the disadvan­ When the one-tape/one-day approach tages of having judges responsible for is used, records of the proceedings are these activities is that it is more difficult accessed by date and then by scanning the for administrative personnel to impose log of the tape in question to find the standards of performance, correct unde­ desired portion. Tape logs may be main­ sirable practices, and take action to en­ tained in a chronological file or kept with force standards. Moreover, when ajudge the tape itself (which is simply shelved in would prefer not to be responsible for chronological order) or both. When this operating the equipment, and does so in records management approach is used, substandard fashion, no one is satisfied, there is rarely a need to interrupt a session and the result is poor record quality. of court to change a tape or to be con­ In spite of some potential for costs cerned about a tape running out while a savings when judges operate the system, hearing or trial is in progress. A disadvan­ it is recommended that courts avoid the tage of the one-day/one-tape approach is practice; the cost savings are modest, in that records of no interest to one user of a any case.? Achieving and maintaining particular tape are interspersed with the high standards for system operation should record that is of interest Uudges often hear be the controlling concern. motions during trial recesses). A second DESIGN VIDEOTAPE LOG FORMATS disadvantage is that changing tapes every AND RECORDS MANAGEMENT PROCEDURE day will leave tapes with what could be (10). These procedural elements of video hours of unrecorded tape on slow court recording are interrelated, and related also days. In both approaches, a complete to the court's calendaring system (daily record of all of the proceedings that may and weekly schedule of hearings). Some be relevant to an appeal are likely to be courts keep separate tapes on which they recorded on different tapes. record the short hearings they conduct, Neither of these approaches, nor usually separated also by the casetype variations of them, are recommended; (civil, criminal, domestic), and they rec­ what will work best in one court may not ord trials and other longer matters on one work in another. However, it is recom-

178 1m plementation mended that the court select the procedure calendar the cases that were heard within that fits best with each of the following, each five-minute interval in court and listed in priority order: then create the official tape log while the court session is in recess, or after the • The procedure should never require session ends. changing a tape while a hearing or trial ESTABLISH STANDARDS FOR IN-COURT is in progress; DUTIES OF JUDGES, COURT STAFF, AND LAWYERS RELATED TO MAKING THE REC­ • The procedure should minimize the ORD (11). The behavior of each partici­ need to change tapes during the day; pant in the courtroom affects the quality of the record. Unlike traditional court • The procedure should minimize the reporting where there is a professional need to make copies of original re­ present in the courtroom whose sole re­ cordings; and sponsibility is to make a high-quality record (the court reporter), video record­

• The procedure for storage and retrieval ing requires judges, court staff, and law Q of recorded proceedings should be yers to assume greater responsibility for simple and require only a minimal record quality. number of indexes that have to be The trial judge has an obligation to created and maintained. allow court personnel the opportunity to activate the recording before the session The cost of unused portions of video­ of court begins and to he sure that no tapes is less important than the other fac­ substantive matters are discussed after the tors listed above and should not be al­ machine has been taken out of the record lowed to control the procedure. Court mode. The judge has a responsibility to supervisors should be especially alert to learn the "zones of conflict" between preventing frugal court clerks from sav­ microphones and spots where the audio ing tape at the expense of occasionally pickup is weak (if any) and to remind having a tape run out during a trial. attorneys not to stand and speak from Preferred log formats will depend on those areas. The attorneys need to pay how the previous choices are made. Log attention to those areas and learn to avoid notations for motions require a different them. Courtroom personnel must alert style of entry in the log than do notes for the participants if the judge or attorneys events in trials. In addition, calendar have inadvertently compromised the qual­ entries during motions for many different ity of the record and take any corrective cases may need to be made in a very short action required to correct or "settle" the time (or the log detail created after the record. Court personnel should have session of court). For a motions log, it clearly established obligations and duties may only be necessary to note on the court with respect to the record; e.g., the form

719 VIDEOTAPED TRIAL RECORDS and content of the logs, and a duty to Video recording has gained general interrupt if a problem has arisen. acceptance and is viewed favorably among TEST THE SYSTEM FOR A MINIMUM OF most lawyers in the sites where it is used. 30 DAYS (12). This step is recommended Whether video recording is a desirable for two reasons. First, it provides a period alternative courts other than the study in which the equipment can be tested and sites, however, is a decision that must be any defective parts or components identi­ left to the judgment of officials in those fied. Second, the quality of the tapes can courts. The quality of videotape records be reviewed under a variety of conditions and the overall utility of video recording (different types of trials, different law­ as a method of court reporting-like the yers, different witnesses.) After review­ quality and utility of traditional court ing the tapes, camera and microphone reporting-are not achieved without care placement may need to be discussed with and proper management. Will officials in the vendor and adjustments made (if every court want to take on management possible) or sensitive areas in the court­ responsibility in an area traditionally left room identified for lawyers to avoid when to lawyers and court reporters? More­ standing and speaking. over, conversion from traditional court reporting to video recording in one or Conclusion more courtrooms is a major undertaking. Therefore, whether video recording is Video recording reliably makes a desirable in acourt is a determination only faithful and readily available record of local officials can make; they alone are in court proceedings at relatively low cost. a position to compare their circumstances The purpose of having the record-appel­ with those of the courts described in this late review of trial proceedings-is served report. in a convenient and familiar fashion when Since the primary purpose of this a videotape is transcribed. Appellate report is to guide decision makers to infor­ review is served in a less convenient but mation that has practical application, it is more faithful manner (videotape preserves fitting to conclude the report by drawing information about the trial that is not attention to the reflections of two lawyers captured in a narrative record) when the who have, perhaps, more experience with tape itself serves as the record for appel­ video recording than any other legal pro­ late review. Lawyers express reserva­ fessionals. These are the chief and deputy tions about being required to use the video­ appellate defenders in Louisville, where tape exclusively as the record on appellate videotaped trial records are made in all of review; for many of them, the disadvan­ the courtrooms in the circuit court. Ex­ tages of working with a videotape are seen cerpts from an article written in the Lou­ as great enough to offset all of its other isville Lawyer in 1987 and a letter written advantages. to the president of Jefferson Audio Video

720 Implementation

Systems, Inc., in May 1989 reveal how, video recording and as the video record­ and why. the opinions of these lawyers ing equipment improved. changed as they gained experience with

Fall 1987

- FRANK W. HEFT, JR. Chief Appellate Defender Louisville, Kentucky

The use of video tapes has been ushered in with the promise of economy and efficiency in the appellate process. However, the limited advantages do not seem to outweigh the obvious disad­ vantages that are visited upon appellate advocates. Simply too much time is consumed in reviewing non-essential footage, in attempting to find certain passages on numerous six-hour vide­ otapes and in trying to discern garbled testimony and inaudible bench conferences.8

May 1989

- FRANK lV. HEFT, JR., and J. DAVID NIEHAUS Chief Appellate Defender and Deputy Appellate Defender Louisville, Kentucky

Since the use of videotape to record court proceedings was intro­ duced to record proceedings in Jefferson Circuit Court in May, 1985, we have handled approximately 92 appeals or appeal­ related cases that utilized the videotapes as the records on appeal. Of those 92 cases, we had serious problems with the videotapes in seven of them .... Over the years, it appears to us that the quality of the videotape recordings has improved and, as we will explain in more detail later in this letter, most of the technical problems seem to have been eradicated.

727 ~----I

I VIDEOTAPED TRIAL RECORDS

The primary advantage of videotape for records on appeal is that it has, for all practical purposes, eliminated the need to request extensions of time for the preparation of the record on appeal . ... We cannotthink of any instance in which we have requested an appellate court to grant us an extension of time because the vide­ otape had not been prepared within the time limits specified for certification of the record on appeal ....

Our trial attorneys also benefit from the speed with which vide­ otapes are available. For example, if there are hearings several weeks or days prior to trial, the trial attorney can obtain a videotape of those proceedings in a very short time and be able to use it in preparing for trial or at the trial itself. It was the rare exception that we would be able to obtain a transcript of evidence in such a short period of time.

When the videotape system of recording proceedings was first adopted in Jefferson Circuit Court, our primary complaint was that the quality of bench conferences was extremely poor.... in recent years, it has become apparent to us that the quality of the videotape system has improved substantially ... problems seem to be confined to situations in which a lawyer, while addressing the jury in opening statements or closing arguments, is located between two microphones and there may be confusion as to which microphone should actually be picking up the attorney's voice. However, that problem is minimal....

The biggest disadvantage to the use of videotape records on appeal is that they inevitably take longer to review than a transcript of evidence. We have had a great deal of experience using videotape records and have accordingly become more efficient in our review of them. However, the fact remains that we can review transcripts of evidence and make notes quicker than we can review videotapes and make notes. Our long­ standing office policy has been to file appellate briefs without seeking extensions of time. In all but the rarest of cases, we were able to comply with that policy in handling appeals that utilized transcripts as the record. We found that we could, in general, file

722 1m plementation

our appellate briefs within thirty days of certification of th~ rec­ ord on appeal in transcript cases. In videotape cases, however, requests for extensions of time to file appellate briefs have necessarily become routine ....

... We do not mean to suggest that we request extensions of time in all videotape cases. Indeed, if the record on appeal consists of one or perhaps two videotapes, we may very well be able to review the tape(s) and file the brief within the thirty day time period. However, given our caseload, it is unlikely that we will be able to file briefs within the thirty day time period if the record on appeal is comprised of three or more videotapes ....

Lastly, it seems that use of a videotape record is advantageous in the sense that the reviewing courts are virtually in the same position as the trial judge and have equal and ample opportunity to observe not only a witness's demeanor, but also the voice inflections of all of the speakers, whether they are witnesses, judges, or attorneys. The videotape undoubtedly brings a trial or a court proceeding to life. It is capable of recreating the tenor and atmosphere in a courtroom that cannot be captured on the pages of a transcript. Seeing and hearing what actually happens in a courtroom necessarily gives the viewer a more accurate under~ standing of precisely what occurred than the words printed in a transcript. With more appropriate and realistic periods estab­ lished for the filing of briefs in order to accommodate the increased time required to review the videotapes, most if not aU of our problems would be resolvedY

123 Notes

1. Louisell and Pirsig, 1953 p. 33. however, the case is not assigned to a lawyer 2. Jerome E. Miller, past president of until about 30 days after it is filed. Extensions NSRA and project advisor. Letter to William of time to file briefs are, therefore, an institu­ E. Hewitt, December 11, 1989. tionalized routine for all of their cases. By 3. Ibid. contrast, no civil appellate attorney interviewed 4. Further exploration and discussion in Louisville reported having to file for an of the possible advantages and disadvantages extension of time to compile the brief in any of this mixed approach are planned for future videotape case, and some appeals that were work. discussed originated from five-to-seven-day 5. Discussions with attorneys in the trials. Kentucky department of public advocacy 6. Ms. Bobbi Olsen, court services suggest that procedural delays contribute specialist, office of the administrator for the substantially to the reasons why extensions of courts, state of Washington, interview com­ time to file briefs are routinely requested. By ment. Ms. Olsen is the coordinator for the a special provision of Kentucky mles of pro­ video recording project in, Washington. cedure, the commonwealth's public defender 7. See the discussion of costs for court is allowed 30 days from the date the record of personnel in Chapter 4. trial proceedings is filed in the court of appeals 8. Heft, 1987 p. 12. to compile the appellant's brief. Normally, 9. Heft and Niehaus, 1989.

124

Page

Appendix A: Attorney Questionnaire ...... 129 Appendix Bl: Tables of Responses to Attorney Questionnaire ...... 134

Appendix B2: Tables of Responses to Selected Questions in Attorney Questionnaire, Comparing Attorneys Who Have Used Videotape for an Appeal with Attorneys Who Have Not ...... 145

Appendix Cl: Summary of Responses from Volunteer Judges and Lawyers for Evaluation Questions Related to Faithfulness of the Record...... 153

Appendix C2: Responses of Volunteers to Each Evaluation Question ... 154

Appendix D: Vendors ...... 166

Appendix E: Examples of Enabling Rule~ and Orders...... 167

Appendix F: List of Individuals Interviewed for the Study...... 168

127 Appendix A

Naltional Center for State Courts and State Justice Institute Evaluation of Video Recordingfor Making the Trial Courtllecord

Staff Use Only ATTORNEY QUESTIONNAIRE

Questionnaire # State/County id (1)

(2)

PART A - Length and Type of Experience of the Responding Attorneys

1. Approximately how many years have you practiced law? years (3)

2. Which of the following best describes your practice? (circle one) (4) 1 = general practice 4 =mostly criminal 2 = mostly civil plaintiff 5 = mostly domestic relations 3 = mostly civil defendant 6 = other (specify) ______

3. Are you a prosecuting attorney? No Yes (5)

4. Are you regularly employed as a salaried, appointed, or contractual public defender? No Yes (6) If yes, please estimate the percent of your time. percent (7)

5. DUling the past year, approximately how many times have you appeared "on the record" in any proceeding in superior court? (circle one) (8) None 1-4 5-12 13-24 25-52 53+

6. During the past year, approximately how many times have you appeared in the "video" courtroom in the Clark County Superior Court? (circle one) (9) None 1-4 5-12 13-24 25-52 53+

7. During the past year, have you been involved in any cases where an appeal has been filed? No Yes (10) If yes, about how many cases? (11)

729 ------.------

VIDEOTAPED TRIAL RECORDS

Staff Use Only S. In the course of your career, have you ever used a court reporter equipped with a computer (CAT) for either of the following purposes:

Sa. Expedited copy? No Yes (12) If yes, in how many trials? (13)

Sb. Litigation support features? No Yes (14) If yes, in how many trials? (15)

PART B - Experience With Videotapes and Court Reporters

By circling the appropriate numbers, please indicate the frequency in which you have encountered the following situations:

IN YOUR EXPERIENCE WITH VIDEOTAPE: CIRCLE ONE Never Rarely Occasionally Frequently 9. How often has a proceeding been delayed, or has a proceeding been interrupted, because video equipment did not function properly? 1 2 3 4 (16)

10. How often have the parties agreed to proceed without a record to avoid delay when video equipment did not function properly? 1 2 3 4 (17)

II. How often has a videotape record you wanted not been available when it was supposed to be? 2 3 4 (IS)

12. How often do you use the VCRs provided by the court to make yoU1: own recording of the proceeding? 1 2 3 4 (19)

13. How often have you had a videotape record transcribed into written form to make it easier to use? 2 3 4 (20)

130 Appendix A

Staff U.·~ Only IN YOUR EXPERIENCE WITH COURT REPORTERS: CIRCLE ONE Never Rarely Occasionally Frequently

14. How often has a proceeding been delayed or been interrupted because a court reporter was late, unavailable, or needed a break? 1 2 3 4 (21)

15. How often have the parties agreed to use audiotape or to proceed without a record when a court reporter was not available? 1 2 3 4 (22)

16. How often has a transcript you ordered from a court reporter not been available when it was supposed to be? 1 2 3 4 (23)

HOW VIDEOTAPES AND TRANSCRIPTS ARE USED:

In our research, we will be able to get objective information about transcripts ordered for appeals (the numbers of transcripts, page length and the elapsed :time from ordering to filing, etc.). What we cannot get is information about transcripts ordered by lawyers for purposes other than appeal, nor information about how lawyers use videotaped records.

Your responses to the next set of questions will give us a much more complete picture of lawyers' experiences with trial court records.

17. During the past year, have you used videotaped records of court proceedings for any of the following purposes? (place a check mark by any that apply) (24) o work on an appeal o to improve your courtroom techniques o prepare for next day's trial o to educate other attorneys o prepare a motion or order o for a client's information o other (describe)

18. During the past year, excluding transcripts ordered/or work on an appeal about how many times have you ordered a transcript from a court reporter? (25)

131 VIDEOTAPED TRIPI. RECORDS

Staff Use Only IF YOUR ANSWER IS 0, PLEASE SKIP TO QUESTION 19.

18a. About how long did it take to get the last transcript you ordered? number of: days, weeks, months (check one) (26)

18b. What was the page length of this transcript? (27)

PART C a Opinion Survey

By circling the appropriate number, please tell us the extent to which you agree or disagree with the following statements.

CIRCLE ONE Agree Disagree Strongly Agree Disagree Strongly

19. A court reporter is more dependable than video equipment. 1 2 3 4 (28)

20. A court reporter makes a more faithful original record than does videotape. 2 3 4 (29)

21. A court reporter will produce a more accurate transcript than a transcription service working from videotape. 2 3 4 (30)

22. Any special benefits of videotape are offset by the length of time it takes to review. 2 3 4 (31)

23. Having videotaped records of proceedings improves the quality of litigation. 2 3 4 (32)

132 Appendix A

Staff Use Only 24. Considering everything, I think making a video record of court proceedings: (circle one) Has more Has more advantages Has as many disadvantages Is a very than disadvantages than Is a very good thing disadvantages as advantages advantages bad thing 1 2 3 4 5 (33)

25. When the introduction of video recording in your court was first announced, how would you describe your reaction? (circle one) Highly Strongly Skeptical Skeptical Didn't care Enthusiastic enthusidStic 1 2 3 4 5 (34)

26. Now that the system has been in place for some time, what is your overall attitude? (circle one) Strongly Strongly Negative Negative Neutral Positive Positive 1 2 3 4 5 (35)

27. What have we NOT asked? Please note any comments you have about the pros or cons of using videotape that you think we are overlooking or that you think are especially important. (36)

Comments: ______

133 AppendixBl

QUESTION #1

"Approximately How Many Years Have You Practiced Law?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,037 N=148 N=168 N=336 N=232 N=160 0-7 Years 21.5% 23.4% 28.0% 25.9% 13.8% 15.0% 8-12 Years 27.1 37.6 25.6 25.3 21.6 31.3 13-19 Years 24.0 22.0 29.2 22.0 25.0 23.1 20+ Years 27.4 17.0 17.3 26.8 39.4 30.6

QUESTION #2

"Which of the Following Best Describes Your Practice?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,018 N=139 N=163 N=327 N=231 N=158 General Practice 33.7% 37.4% 25.8% 35.5% 33.3% 35.4% Mostly Civil 40.8 31.0 54.6 40.4 45.5 29.2 Mostly Criminal 7.2 18.7 4.3 6.1 2.2 9.5

Mostly Domestic Relations 5.2 4.3 2.5 3.4 9.1 7.0 Other 13.2 8.6 12.9 14.7 10.0 19.0

QUESTION #3

"Are you a Prosecuting Attorney?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=1,021 N=139 N=l64 N=328 N=231 N=159 NO 95.0% 92.1% 98.8% 96.3% 97.0% 88.1% YES 5.0 7.9 1.2 3.7 3.0 11.9

734 Appendix Bl

QUESTION #4 "Are You Regularly Employed as a Salaried, Appointed, or Contractual Public Defender?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=1019 N=139 N=164 N=326 N=232 N=158 NO 93.4% 84.9% 96.3% 96.9% 92.2% 92.4% YES 6.6 15.1 3.7 3.1 7.8 7.6

QUESTION #5 "During the Past Year, Approximately How Many Times Have You Appeared 'On the Record' in Any Proceeding in the Superior Court?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,OI6 N=139 N=166 N=325 N=231 N=157 NONE 6.2% 6.6% 5.4% 6.8% 0.4% 14.0% 1-4 11.7 10.9 18.7 14.5 2.2 13.4 5-12 18.5 21.2 34.9 18.2 8.2 14.6 13-24 20.1 23.4 27.7 21.5 14.3 14.6 25-52 21.7 11.7 10.8 23.4 33.3 21.0 53+ 21.9 26.3 2.4 15.7 41.6 22.3

QUESTION #6 "During the Past Year, Approximately How Many Times Have You Appeared in the 'Video Courtroom' in the Superior Court?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,017 N=139 N=I64 N=327 N=229 N=158 NONE 24.7% 25.2% 42.1% 11.0% 28.8% 28.5% 1-4 30.1 39.6 42.7 16.5 33.6 31.6 5-12 21.6 25.9 12.2 19.9 27.9 22.2 13-24 10.0 4.3 3.0 18.3 7.0 9.5 25-52 8.4 3.6 21.1 1.3 5.1 53+ 5.2 1.4 13.1 1.3 3.2

135 VIDEOTAPED TRIAL RECORDS

QUESTION #7 "During the Past Year, Have You Been Involved in Any Cases Where an Appeal Has Been Filed?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=l,018 N=139 N=166 N=325 N=230 N=IS8 NO 35.4% 48.2% 29.5% 34.8% 21.3% 51.9% YES 64.6 51.8 70.5 65.2 78.7 48.1

QUESTION #8 "During the Course of Your Career, Have You Ever Used a Court Reporter Equipped with a Computer (CAT) for Either of the Following Purposes?"

Expedited Copy

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=997 N=132 N=161 N=322 N=226 N=156 NO 74.6% 75.0% 78.9% 77.0% 63.3% 81.4% YES 25.4 25.0 21.1 23.0 36.7 18.6

Litigation Support Features

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=953 N=127 N=156 N=308 N=212 N=150 NO 87.1% 91.3% 85.3% 88.3% 82.1.% 90.0% YES 12.9 8.7 14.7 11.7 17.9 10.0

136 Appendix S1

QUESTION #9 "How Often Has a Proceeding Been Delayed, or Has a Proceeding Been Interrupted, Because Video Equipment Did Not Function Properly?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=899 N=IIO N=140 N=300 N=214 N=135 Never 63.8% 73.6% 67.9% 47.0% 68.7% 81.5% Rarely 28.1 18.2 26.4 38.3 26.6 17.8 Occasionally 7.2 6.4 5.0 13.7 4.2 0.7 Frequently 0.8 1.8 0.7 1.0 0.5

QUESTION #14 "How Often Has a Proceeding Been Delayed or Been Interrupted Because a Court Reporter Was Late, or Needed a Break?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=984 N=133 N=161 N=314 N=230 N=146 Never 23.7% 24.8% 28.0% 30.9% 15.2% 15.8% Rarely 50.0 52.6 50.9 49.4 47.4 52.1 Occasionally 23.6 21.1 20.5 17.5 33.5 26.7 Frequently 2.7 1.5 .6 2.2 3.9 5.S

QUESTION #10 "How Often Have the Parties Agreed to Proceed Without a Record to A void Delay when Video Equipment Did Not Function Properly?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=875 N=I04 N=134 N=301 N=206 N=130 Never 92.1% 95.2% 91.8% 88.4% 91.7% 99.2% Rarely 4.7 3.8 6.0 6.3 4.4 0.8 Occasionally 2.9 1.0 2.2 5.0 2.9 Frequently 0.3 0.3 1.0

137 VIDEOTAPED TRIAL RECORDS

QUESTION #11 "How Often Has a Videotape Record You Wanted Not Been Available when It Was Supposed to Be?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=870 N=108 N=135 N=296 N=200 N=13l Never 81.7% 88.9% 88.1% 72.0% 82.5% 90.1% Rarely 12.5 7.4 15.7 18.9 13.5 6.9 Occasionally 4.5 3.7 3.7 6.8 4.0 1.5 Frequently 1.3 1.5 2.4 1.5

QUESTION #16 "How Often Has a Transcript You Ordered from a Court Reporter Not Been Available when It Was Supposed to Be?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=982 N=132 N=161 N=3l4 N=230 N=145 Never 19.3% 42.4% 24.2% 18.8% 7.0% 13.8% Rarely 33.0 34.8 34.2 38.9 24.3 31.0 Occasionally 36.0 20.5 32.9 30.6 52.2 40.0 Frequently 11.6 2.3 8.7 11.8 16.5 15.2

QUESTION #12

"How Often Do You Use the VCRs Provided by the Court to Make Your Own Recording of the Proceeding?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=891 N=ll0 N=138 N=300 N=210 N=133 Never 74.9% 78.2% 80.4% 67.3% 85.2% 66.9% Rarel;>: 14.0 16.4 9.4 16.0 10.0 18.8 Occasionally 7.9 5.5 9.4 11.0 2.9 9.0 Frequently 3.3 0.7 5.7 1.9 5.3

738 Appendix B1

QUESTION #13 "How Often Have You Had a Videotape Record Transcribed into Written Form to Make It Easier to Use?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=886 N=107 N=139 N=300 N=208 N=132 Never 60.3% 72.9% 69.1% 47.7% 52.4% 81.8% Rarely 15.5 12.1 12.9 20.0 15.4 10.6 Occasionally 14.1 5.6 11.5 20.7 17.3 3.8 Frequently 10.2 9.3 6.5 11.7 14.9 3.8

QUESTION #15 "How Often Have the Parties Agreed to Use Audiotape or to Proceed Without a Record when a Court Reporter Was Not Available?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=975 N=130 N=160 N=311 N=229 N=145 Never 69.9% 67.7% 62.5% 71.4% 66.8% 82.1% Rarely 21.1 20.8 20.0 21.9 24.9 15.2 OccasiOllally 7.8 9.2 15.0 6.1 7.9 2.1 Frequently 1.1 2.3 2.5 0.6 0.4 0.7

QUESTION #17 "During the Past Year, Have You Used Videotape RecOll'ds of Court Proceedings for Any of the Following Purposes?"

Work on an Appeal

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,035 N=141 N=167 N=335 N=232 N=160 NO 81.5% 87.9% 92.2% 57.6% 94.4% 96.3% YES 18.5 12.1 7.8 42.4 5.6 3.8

739 VIDEOTAPED TRIAL RECORDS

Prepare for Next Day's Trial

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,035 N=141 N=167 N=335 N=232 N=160 NO 90.9% 93.6% 95.8% 83.9% 94.8% 92.5% YES 9.1 6.4 4.2 16.1 5.2 7.5

To Improve Your Courtroom Techniques

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,035 N=141 N=167 N=335 N=232 N=160 NO 84.2% 85.8% 86.8% 74.0% 94.0% 86.9% YES 15.8 14.2 13.2 26.0 6.0 13.1

To Educa,te Other Attorneys "

All Ca~es Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,035 N=141 N=167 N=335 N=232 N=160 NO 93.0% 96.5% 95.2% 89.0% 96.6% 91.3% YES 7.0 3.5 4.8 11.0 3.4 8.8

For a Client's Information

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,035 N=141 N=167 N=335 N=232 N=160 NO 87.4% 94.3% 93.4% 75.8% 95.3% 88.1% YES 12.6 5.7 6.6 24.2 4.7 11.9

Other Purpose

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,035 N=141 N=167 N=335 N=232 N=160 NO 93.9% 93.6% 94.6% 91.3% 97.0% 94.4% YES 6.1 6.4 5.4 8.7 3.G 5.6

;40 Appendix B1

QUESTION #19* "A Court Reporter is More Dependable than Video Equipment?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=913 N=117 N=148 N=307 N=208 N=133 Agree Strongly 8.9% 10.3% 7.4% 11.1% 8.2% 5.3% Agree 32.2 24.8 37.2 30.9 33.2 34.6 Disagree 52.7 61.5 48.6 53.1 50.5 51.9 Disagree Strongly 6.2 3.4 6.8 4.9 8.2 8.3

*Data for Question #18 is omitted because too many responses were invalid or were omitted.

QUESTION #20 "A Court Reporter Makes a More Faithful Original Record than Does Videotape?'!'

All Cases Vancouver Raleigh Louis;viIIe Pontiac Kalamazoo

N=913 N=l13 N=147 N=306 N=213 N=134 Agree Strongly 5.4% 4.4% 3.4% 8.8% 3.3% 3.7% Agree 19.3 17.7 15.6 23.5 16.0 20.1

Disagre(~ 63.1 67.3 68.7 57.2 64.8 64.2 Disagree Strongly 12.3 10.6 12.2 10.5 16.0 11.9

QUESTION #21

"A Court Reporter Will Produce a More Acc~urate Transcript than a Transcription Service Working from Videotape?'"

All Cases Pontiac Kalamazoo

N=332 N=206 N=126 Agree Strongly 6.3% 5.8% 7.1% Agree 28.9 26.7 32.5 Disagree 57.5 59.7 54.0 Disagree Strongly 7.3 7.8 6.3 *Responses of Vancouver, Raleigh, and Louisville do not E\pp1y to this question. 747 - I

VIDEOTAPED TRIAL RECORDS

QUESTION #22 "Any Special Benefits of Videotape Are Offset by the Length of Time it Takes to Review?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N::::892 N=116 N=139 N=304 N=201 N=132 Agree Strongly 15.9% 17.2% 6.5% 29.9% 8.0% 4.5% Agree 34.5 31.0 38.1 32.6 36.3 35.6 Disagree 46.1 47.4 52.5 34.5 52.7 54.5 Disagree Strongly 3.5 4.3 2.9 3.0 3.0 5.3

QUESTION #23 "Having Videotaped Records of Proceedings Improves the Quality of Litigation?"

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=869 N=1l3 N=136 N=294 N=198 N=128 Agree Strongly 6.2% 7.1% 5.1% 4.4% 7.6% 8.6% Agree 45.7 39.8 48.5 46.3 50.0 39.8 Disagree 40.7 44.2 41.2 38.8 36.4 48.4 Disagree Strongly 7.4 8.8 5.1 10.5 6.1 3.1

142 Appendix B1

QUESTION #24 "Considering Everything, I Think Making a Video Record of Court Proceedings •.. "

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=951 N=127 N=150 N=31O N=224 N=140 Is a Very Good Thing 11.6% 10.2% 10.7% 11.9% 10.7% 14.3% Has More Advantages than Disadvantages 43.5 43.3 47.3 41.3 43.3 45.0 Has as Many Disadvantages as Advantages 30.8 29.9 34.0 26.1 35.3 31.4 Has More Disadvantages than Advantages 12.2 14.2 6.7 17.7 9.4 8.6 Is a Very Bad Thing 1.9 2.4 1.3 2.9 1.3 0.7

QUESTION #25 "When the Introduction of Video Record!ng in Your Court Was First Announced, How Would You Describe Your Reaction?"

All Cases Vancouver Raleigh Louisville Pontiac Kalam~oo

N=949 N=128 N=146 N=304 N=226 N=145 Highly Skeptical 3.5% 4.7% 1.4% 5.3% 3.5% 0.7% Skeptical 34.0 42.2 24.0 37.8 24.8 43.4 Didn't Care 36.2 32.0 38.4 28.3 47.8 36.6 Enthusiastic 24.3 20.3 33.6 27.0 22.6 15.9 Strongly Enthusiastic 1.9 0.8 2.7 1.6 1.3 3.4

143 VIDEOTAPED TRIAL RECCRDS

QUESTION #26

"Now That the System Has Been in Place for Som~ Time, What Is Your Overall Attitude?"

All Cases Vancouver Raleigh Louisville Pontiac Kalam,azoo

N=950 N=129 N=146 N=309 N=223 N=143 Strongly Negative 3.6% 4.7% 2.1% 6.5% 2.2% Negative 11.7 10.1 5.5 19.7 7.6 8.4% Neutral 41.4 50.4 50.7 24,9 49.3 46.9 Positive 36.6 29.5 33.6 40.5 37.2 37.1 Strongly Positive 6.7 5.4 8.2 8.4 3.6 7.7

QUESTION #27

"Please Note Any Comments You Have About the Pros & Cons of Using Videotape That You Think We Are Overlooking or That You Think Are Especi~Uy Important."

All Cases Vancouver Raleigh Louisville Pontiac Kalamazoo

N=I,037 N=141 N=167 N=335 N=232 N=160 Number Who Commented 370 54 31 167 66 52 Percent Who Commented 35.6% 38.3% 18.5% 49.7% 28.4% 32.5%

744 AppendixB2

QUESTION #5

"During the Past Year, Approximately How Many Times Have You Appeared 'On the Record' in Any Proceeding in the Superior Court?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=189 N=829 NONE 0.5% 7.5% 1-4 6.3 13.0 5-12 15.3 19.2 13-24 20.6 20.0 25-52 28.0 20.1 53+ 29.1 20.1

QUESTION #6 "During the Past Year, Approxmmately How Many Times Illave You Appeared in the 'Video Courtroom' in the Superior Court"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=191 N=828 NONE 3.1% 29.7% 1-4 17.3 33.0 5-12 21.5 21.6 13-24 21.5 7.5 25-52 24.6 4.6 53+ 12.0 3.6

145 VIDEOTAPED TRIAL RECORDS

QUESTION #8 "During the Course of Your Career, Have You Ever Used a Court Reporter Equipped with a Computer (CAT) for Either of the Following Purposes?"

Expedited Copy

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=1.88 N=811 YES 37.2% 22.6% NO 62.8 77.4

Litigation Support Features

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=181 N=774 YES 16.6% 12.0% NO 83.4 88.0

QUESTION #9 "How Often Has a Proceeding Been Delayed, or Has a Proceeding Been Interrupted, Because Video Equipment Did Not Function Proper~y?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=188 N=846 Never 44.7% 69.0% Rarely 40.4 24.8 Occasionally 12.8 5.8 Frequently 2.1 0.4

146 Appendix B2

QUESTION #14 "How Often Has a Proceeding Been Delayed or Been Interrupted Because a Court Reporter Was Late, or Needed a Break?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=189 N=797 Never 21.7% 24.2% Rarely 51.9 49.4 Occasionally 23.3 23.7 Frequently 3.2 2.6

QUESTION #11 "How Often Has a Videotape Record You Wanted Not Been Available when It Was Supposed to Be?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=187 N=685 Never 67.9% 85.5% Rarely 17.1 11.2 Occasionally 11.8 2.5 Frequently 3.2 0.7

147 VIDEOTAPED TRIAL RECORDS

QUESTION #16 "How Often Has a Transcript You Ordered from a Court Reporter Not Been Available when It Was Supposed to Be?"

Attorneys that AUrmeys that have used video have not used video for an appeal for an appeal

N=188 N=796 Never 14.9% 20.4% Rarely 37.8 31.9 Occasionally 32.4 36.9 Frequently 14.9 10.8

QUESTION #12 "How Often Do You Use the VCRs Provided by the Court to Make Your Own Recording of the Proceeding?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=188 N=705 Never 59.0% 79.1% Rarely 19.7 12.5 Occasionally 13.8 6.2 Frequently 7.4 2.1

QUESTION #13 "How Often Have You Had a Videotape Record Transcribed into Written Form to Make It Easier to Use?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=188 N=700 Never 33.5% 67.6% Rarely 25.0 12.9 Occasionally 23.4 11.6 Frequently 18.1 8.0

148 Appendix B2

QUESTION #17 "During the Past Year, Have You Used Videotape Records of Court Proceedings for Any of the Following Purposes?"

Prepare for Next Day's Trial

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=191 N=846 NO 75.9% 94.3% YES 24.1 5.7

Prepare a Motion or Order

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=191 N=846 NO 49.2% 88.4% YES 50.8 11.6

To Improve Your Courtroom Techniques

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=191 N=846 NO 63.9% 88.8% YES 36.1 11.2

To Educate Other Attorneys

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=191 N=846 NO 84.8% 94.9% YES 15.2 5.1

149 VIDEOTAPED TRIAL RECORDS

For a Client's Information

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=191 N=846 NO 64.9% 92.6% YES 35.1 7.4 Other Purpose

Attorneys that Attorneys !hat have used video have not used video for an appeal for an appeal

N=191 N=846 NO 90.1% 94.8% YES 9.9 5.2

QUESTION #19 "A Court Reporter is More Dependable than Video Equipment?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=185 N=729 Agree 42.1% 40.8% Disagree 57.9 59.3

QUESTION #20 "A Court Reporter Makes a More Faithful Original Record than Does Videotape?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=185 N=730 Agree 35.3% 21.9% Disagree 64.7 78.1

150 Appendix B2

QUESTION #22 "Any Special Benefits of Videotape Are Offset by the Length of Time It Takes to Review?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=177 N=712 Agree 63.2% 47.2% Disagree 36.8 52.8

QUESTION #23 "Having Videotaped Records of Proceedings Improves the Quality of Litigation?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=179 N=691 Agree 44.7% 53.8% Disagree 55.3 46.2

QUESTION #24 "Considering Everything, I Think Making a Video of Court Proceedings ... "

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=188 N=765 Has More Advantages than Disadvantages 45.2% 57.6% Disadvantages=Advantages 28.7 31.2 Has More Disadvantages than Advantages 26.1 11.1

751 ~------.--- I

VIDEOTAPED TRIAL RECORDS

QUESTION #25 "When the Introduction of Video Recording in Your Court was First Announced, How Would You Describe Your Reaction?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=184 N=767 Highly Skeptical 4.9% 3.1% Skeptical 39.7 32.6 Didn't Care 29.3 37.9 Enthusiastic 22.3 24.9 Strongly Enthusiastic 3.8 1.4

QUESTION #26 "Now That the System Has Been in Place for Some Time, What Is Your Overall Attitude?"

Attorneys that Attorneys that have used video have not used video for an appeal for an appeal

N=186 N=766 Strongly Negative 9.7% 2.1% Negative 24.7 8.5 Neutral 18.3 46.9 Positive 34.4 37.3 Strongly Positive 12.9 5.2

752 AppendixCl

Summary of Responses from Volunteer Judges and Lawyers for Evaluation Questions Related to Faithfulness of the Record

Question Distribution of Responses

#8. Did the court's operator ever not tum the 1-2 3-5 6 or more machine on before the hearing or session Never times times times began (or resumed), tum the machine off 18 6 before the hearing ended or recessed, or something similar?

9. Did some portion of the proceeding not 1-2 3-5 6 or more get recorded because of a machine Never times times times malfunction or tape defect? 18 6

10. To what extent was inaudibility a problem? Did not Very More than Serious occur minor Minor minor problem 7 6 9 2

11. How often did you find that speakers could 1-2 3-5 6 or more not be identified? Never times times times 8 7 4 6

11 a. To what extent was the transcript not Did not Very More than Serious matching the tape a problem? occur minor Minor minor problem (Panels #9 and #10 only) 1 2 3

13. A court reporter would usually make a Strongly Strongly more faithful record than this videotape. agree Agree Disagree disagree 3 6 13 3

14. The record represented by this videotape: Was Exceeded better by far than Met Was very my idea my idea my idea Wa& bad, far ofa ofa ofa below a below a minimal minimal minimal minimum minimum standard standard standard standard standard 1 9 10 5 0

15. Before you participated in this review, Strongly Strongly how would you describe your negative Negative Neutral Positive positive expectations about video recording? 0 0 8 14 3

16. Now that you have completed this review, Strongly Strongly how would you describe your attitude? negative Negative Neutral Positive positive 1 7 3 9 5

753 Appendix e2-A

Did the Court's Operator Ever Not Turn the Machine on Before the Hearing or Session Began (or Resumed), Turn the Machine Off Before the Hearing Ended or Recessed, or Something Similar? (Question 8)

Number of Distribution of responses responses received 1·2 3·5 60r Panel number to date Tape source Never times times more times

3 NC 2 2 2 NC 2 3 2 KY 4 KY 5 3 KY 2 6 3 KY 3 7 3 WA 2 8 2 KY 2 9 3 MI 2 10 3 MI 3

Totals 25 18 6 0

154 Appendix C2 .. B

Did Some Portion of the Proceeding Not Get Relcorded Because of a Machine Malfunction or Tape Defect? (Question 9)

Number of Distribution of Iresponses responses received 1·2 3·5 6 or Panel number to date Tape source Never times times more times

3 NC 2 2 2 NC 3 2 KY 2 4 KY 5 3 KY 2 6 3 KY 3 7 3 WA 2 8 2 KY 2 9 3 MI 2 10 3 MI 3

Totals 25 18 6 0

155 Appendix C2-C

To What Extent Was Inaudibility a Problem? (Question 10)

Number of Distribution of responses responses received Did not More than Serious Panel number to date Tape source occur Very minor Minor minor problem

3 NC 2 2 2 NC 2 3 2 KY 4 KY 5 3 KY 2 6 3 KY 7 3 WA 2* 8 2 KY 9 3 MI 2 10 3 MI

Totals 25 7 6 9** 2

* Comments clarify that this problem was due to poor microphone coverage during an in camera intervip.w between judge and children in a custody proceeding. ** Among the 11 individuals who found inaudibility to be more than a minor problem, 5 respondents also reported a negative response to question #17 (overall attitude after viewing the tapes). An equal number reported a positive overall assessment, and one respondent was neutral.

156 Appendix C2-D

How Often Did You Find That Speakers Could Not Be Identified?* (Question 11)

Number of Distribution of responses responses received 1·2 3·'s 6 or Panel number to date Tape source Never times times more times

1 3 NC 2 2 2 NC 2 3 2 KY 4 1 KY 5 3 KY 2 1 6 3 KY 2 1 7 3 WA 2 8 2 KY 1 9 3 MI 1 10 3 MI

Totals 25 8 7 4 6

'" Differences in interpretation of the question might explain both the spread and the contradic- tory impressions of individuals who viewed the same tape.

157 Appendix C2-E

(Only for Respondents Who Viewed Tapes from Michigan) To What Extent Was the Transcript Not Matching the Tape a Problem? (Question Ua)

Number of Distribution of responses responses received Did not More than SeriOUS Panel number to date Tape source occur Very minor Minor minor problem

9 3 MI 1 10 3 MI 1 2

Totals 6 1 2 3

158 Appendix C2-F

A Court Reporter Would Usually Make A more Faithful Record than This Videotape. (Question 13)

Number of Distribution of responses responses received Strongly Disagree Panel number to date Tape source agree Agree Disagree strongly

1 3 NC 1 2 2 NC 3 2 KY 2 4 1 KY 1 5 3 KY 2 6 3 KY 2 1 7 3 WA 8 2 KY 1 9 3 MI I 10 3 MI 3

Totals 25 3 6 13 3

159 Appendix C2-G

The Record Represented by This Videotape: (Question 14)

Was Exceeded better by far than Met Was very Number of my idea my idea my idea Was bad, far responses ora ofa ora below a below a received minimal minimal minimal minimum minimum Panel number to date Tape source standard standard standard standard standard

3 NC 1 2 2 2 NC 1 3 2 KY 2 4 KY 1

5 3 KY 1 2

6 3 KY 2 1

7 3 WA 1

8 2 KY 1

9 3 MI

10 3 MI 2

Totals 25 1 9 10 5 0

160 Appendix C2-H

Before You Participated in This Review, How Would You Describe Your Expectations About Video Recording? (Question 15)

Number of Distribution of responses responses received Strongly Strongly Panel number to date Tape source negative Negative Neutral Positive positive

1 3 NC 1 2 2 NC 2 3 2 KY 1 4 1 KY 1 5 3 KY 3 6 3 KY 2 7 3 WA 1 2 8 2 KY 1 1 9 3 MI 2 1 10 3 MI 3

Totals 25 0 0 8 14 3

767 Appendix C2-J

Now That You Have Completed This Review, How Would You Describe Your Attitude?* (Question 16)

Number of responses Distribution of responses received Strongly Strongly Panel number to date Tape source negative Negative Neutral Positive positive

3 NC 3 2 2 NC 3 2 KY 4 KY 5 3 KY 2 6 3 KY 1* 2 7 3 WA 8 2 KY 9 3 MI 2 10 3 MI

Totals 25 7 3 9 5

* Positive for trial use to review testimony. Negative for appellate review.

762 Appendix C2-J

Shift in the Attitudes of Volunteer Lawyers and Judges After Reviewing Videotapes·

Change No Change in a change in a negative in positive direction attitude direction

Number of individuals 11 6 8

* To establish the attitude change, numeric scores for question #15 were subtracted from scores for question #16. If the result was a negative number, the change in opinion was downward, but the overall opinion was not necessarily negative. For example, some respondents changed from "strongly positive" to "positive."

163 ~------

AppendixC3

Names, Titles, and Addresses of Volunteers Who Reviewed Sample Videotapes

Honorable Carl W. Anderson Honorable Samuel W. Coleman III Administrative Presiding Justice Judge, Court of Appeals of Virginia Court of Appeals 101 Lee Street, Suite 1 455 Golden Gate Avenue, Room 4200 Bristol, VA 24201 San Francisco, CA 94102 Honorable Dennis L. Draney Honorable John E. Babiarz, Jr. Judge, 8th District Court Associate Judge Uintah County Courthouse Superior Court of Delaware 147 East Main Street 11 th and King Streets Vernal, UT 84078 Wilmington, DE 19801 Mr. Earl F. Dorius Honorable Morton Brody 236 State Capitol Chief Justice, Maine Superior Court Salt Lake City, UT 84114 Courthouse 95 State Street Mr. William A. Ellis Augusta, ME 04330 Commissioner Court of Appeals, Division I Honorable Robert Chapman Buckley 1 Union Square, 600 University Street Justice, Illinois Appellate Court Seattle, WA 98101 1st Judicial District, Division One 2882 Richard J. Daley Center Honorable Hardy Gregory, Jf. Chicago, IL 60602 Justice, Supreme Court of Georgia 528 State Judicial B'Jilding Mr. Brian K. Burke Atlanta, GA 30334 Baker and Daniels 810 Fletcher Trust Building Honorable Zerne P. Haning III Indianapolis, IN 46204-2454 Justice, Court of Appeals 455 Golden Gate A venue, Room 4200 Honorable Linda Chezem San Francisco, CA 94102 Judge, Indiana Court of Appeals State House Honorable Thomas A. Hett Indianapolis, IN 46204 Circuit Judge, Illinois Circuit Court of Cook County Honorable Robert W. Clifford 2600 S. California A venue, Room 506 Associate Justice, Supreme Judicial Chicago, IL 60608 Court of Maine 2 Turner Street, 2nd Floor Honorable Richard C. Howe Auburn, ME 04210 Associate Chief Justice Supreme Court of Utah, The Capitol Salt Lake City, UT 84114

764 Appendix C3

Honorable Bruce E. Kaufman Mr. John F. Prescott, Jr. Judge, District Court Ice, Miller, DoNadio, & Ryan P.O. Box 2268 I American Square, Box: 82001 Santa Fe, NM 87504-2268 Indianapolis, IN 46282

Honorable Louis A. Lavorato Honorable Jack P. Scholfield Justice, Supreme Court ofIowa Judge, Court of Appeals State Capitol Division I, 1 Union Square Des Moines, IA 50319 600 University Street Seattle, WA 98101 Honorable Harry W. Low Presiding Justice Honorable William Douglas Stein Court of Appeals Justice, Court of Appeals 455 Golden Gate Avenue, Room 4200 455 Golden Gate Avenue; Room 4200 San Francisco, CA 94102 San Francisco, CA 94102

Honorable Julia M. Nowicki Honorable Michael J. Voris Associate Judge, Dlinois Judge, Ohio Court of Common Pleas Circuit Court of Cook County 270 East Main Street 1802 Richard J. Daley Center Batavia,OH 45103 Chicago, IL 60602 Mr. Joshua G. Vincent Honorable Stephen E. Platt Hinshaw, Culbertson, Moelmann, Judge, Elkhart Superior Court #2 Hoban & Fuller 315 South Second Street 222 North LaSalle Street, Suite 300 Elkhart, IN 46516 Chicago, IL 60601-1081

165 AppendixD

Vendors

Jefferson Audio Video Systems, Inc. (JAVS) Sound Systems, Inc. 13020 Middletown Industrial 6 Bysher Avenue Boulevard, Louisville, KY 40223 Flourtown, P A 19031 (502) 244-8788 (502) 267-8640 Contact: David Green Contact: Ed Fettinger President

Pran, Inc. Court Vision Communications, Inc. 790 Rock Street 86 Long Court New Braunfels, TX 78130 Thousand Oaks, CA 92360 (512) 625-2376 (805) 496-4692 Contact: Scott King Contact: Don W. Mettert Chief Executive Officer Tim Landry Sound Construction 962 Robert E. Lee Boulevard Video Judicial Systems New Orleans, LA 70124 33 New Montgomery Tower, Suite 280 (504) 282-2042 San Francisco, CA 94105-9763 Contact: Tim Landry (415) 227-0800 Contact: Deno Kannes Chief Executive Officer

FOR PRELIMINARY INFORMATION ABOUT THESE VENDORS

Contact: William E. Hewitt National Center fer State Courts 300 Newport Avenue Williamsburg, VA 23187-8798 (804) 253-2000

166 AppendixE

Examples of Enabling Rules and Orders

KENTUCKY

Kentucky Supreme Court Order Establishing Procedures for Using Videotape Equip­ ment to Record Court Proceedings.

MICHIGAN

Michigan Supreme Court Administrative Order 1989-2, Videotaped Record of Court Proceedings. Entered February 27,1989.

MINNESOTA

Minnesota Supreme: Court Order C4-89-2099. Videotaped Records of Court Proceed­ ings in the Third, Fifth, and Seventh Judicial Districts. Filed November 17, 1989.

NORTH CAROLINA

North Carolina Supreme Court Order, Rules to Govern the Use of Video Court Reporting System During Test/Evaluation Period. Signed February 3, 1988.

WASHINGTON

Washington Supreme Court Order No. 25700-A-443, Establishment of Temporary Procedures for Experimental Use of Videotape Equipment to Record Court Proceed­ ings. Dated November 2, 1989.

767 AppendixF

List of Individuals Interviewed for the Study

KENTUCKY Appellate Judges

Trial Judges Honorable R. W. Dyche III, Judge, Court of Appeals, London, KY Honorable James S. Chenault Honorable Thomas D. Emberton, Honorable Ellen Ewing Judge, Court of Appeals, Edmonton, Honorable William Jennings KY Honorable Earl O'Bannon Honorable Paul D. Gudgel, Judge, Honorable Michael O'Connell Court of Appeals, Lexington, KY Honorable John Potter Honorable John P. Hayes, Judge, Court Honorable Edwin Schroering of Appeals, Louisville, KY Honorable Rebecca Westerfield Honorable Harris S. Howard, Judge, Court of Appeals, Prestonsburg, KY Attorneys Honorable J. William Howerton, Chief Judge, Court of Appeals, Mr. Gregory Bubalo Paducah,KY Ms. Elizabeth Bruderman, Honorable John D. Miller, Judge, Court Communications Specialist, of Appeals, Owensboro, KY Louisville Bar Association Honorable Judy M. West, Judge, Court Ms. Lynda Campbell, Public Advocates of Appeals, Crestview Hills, KY Office, Richmond, KY Honorable Anthony M. Wilhoit, Judge, Mr. Hiram Ely III Court of Appeals, Versailles, KY Mr. Michael Eubanks Mr. Paul Fagan Mr. Jerry Gilbert Court Administrative Personnel Mr. Daniel T. Goyette Mr. Robert Y. Gwin Mr. Don Cetrulo, Administrative Mr. Frank W. Heft Director of the Courts Ms. Barbara Hortung Mr. John Scott, Clerk, Supreme Court Mr. David A. Lambertus and Court of Appeals Mr. Ernie Lewis, Public Advocates Ms. Laura Stammel Office, Richmond, KY Mr. R. 1. Vize, Trial Court Ms. Peggy B. Lyndrup, President, Administrator, Louisville, KY Louisville Bar Association Ms. Barry Queenan, Executive Director, Louisville Bar Association MICHIGAN Mr. Timothy Riddell, Chief Appellate Divison, Public Advocates Office Trial Judges Mr. Thomas Smith, Commonwealth Attorney, Madison County Honorable Jessica R. Cooper, Sixth Mr. William P. Swain Circuit Court, Pontiac Ms. Virginia H. Snell Honorable Richard R. Lamb, Chief Mr. John L. Tate Judge, Ninth Circuit Court, Mr. Randy Wheeler, Public Advocates Kalamazoo Office 768 Appendix F

Honorable Norman L. Lippitt, Judge, Attorneys Sixth Circuit Court, Pontiac Mr. Burton Craige Attorneys Mr. John Fountain, President, Wake County Bar Association Mr. John Allen, Private Attorney, Mr. Garry Parsons Kalamazoo Mr. Robert E. Smith Mr. Mark V. Courtade, Chief, Special Ms. Jean Tucker Pro:;ecutions, Kalamazoo Mr. Derek Hurt COllrt Administrative Personnel Mr. Laurence Imerman Mr. Ronald Kapocitz Ms. Pam Adams, Video Courtroom Mr. Robert Levine Clerk Mr. Richard Lustig Ms. Sallie Dunn, Trial Court Mr. Ross Stancati Administrator Mr. James Vlasic Mr. Michael J. Unruh, Administrative Mr. Daniel Van Norman Office of the Courts Mr. David York Mr. Brian Zubel, Prosecuting Attorney WASHINGTON Court Administrative Personnel Trial Judge Ms. Carla Bebault, Court Reporter, Kalamazoo Honorable John N. Skimas, Vancouver Ms. Judy K. Cunningham, Court Administrator, Oakland CounPj Attorneys Ms. Lynn E. Erickson, Court Reporter, Oakland County Mr. Art Bennett, General Practice Ms. Sue King, Judicial Aide, Mr. Michael Dodds, Deputy Prosecut~ Kalamazoo ingAttorney Ms. Devona Jones, Court Mr. Jim Hamilton, General Practice Administrator, Kalamazoo Mr. Richard Melnick, Deputy Prosecut­ Ms. Donna Smigelski, Judicial Aide, ingAttorney Oakland County Mr. Tom Phelan, General Practice Ms. Dianne Sponseller, The Legal Mr. Steven Thayer, Criminal Practice Record Ms. Corenn Wright, Law Clerk, Appellate Judges Kalamazoo Honorable Jerry Alexander, Chief Judge, Division IT, Court of Appeals NORTH CAROLINA Honorable Keith Callow, Chief Justice, Supreme Court Trial Judges Mr. Donald G. Meath, Commissioner, Court of Appeals, Division IT Honorable J. B. Allen, Jr., Trial Judge Honorable Henry W. Heidt, Jr., Trial Judge

169 VIDEOTAPED TRIAL RECORDS

Court Administrative Personnel Ms. Diana Herbert, Chief Deputy Clerk, Court of Appeals, San Mr. Robert Carlberg, Trial Court Francisco Administrator, Spokane County Ms. Suzanne James, Court Administra­ Ms. Kathy Dempsey, Judges Secretary, tor, Circuit Court, Prince Georges Clark County County, Maryland Mr. Mark Oldenberg, Trial Court Mr. Clyde Namuo, Clerk of Court, Administrator, Clark County Honolulu, Hawaii Ms. Bobbi Olsen, Court Services Mr. William Moran, Administrative Specialist, OAC Office of the u.S Courts Ms. Jan Michels, Clerk of Court, King Mr. Alan Slater, Executive Officer, County Orange County Superior Court, California Other States Vendors Ms. Leslie Dana-Frigault, Staff Member, Administrative Office of Mr. David Green, President, Jefferson the Courts, Oregon Audio Video, Inc., Louisville, KY Ms. Pat Hill, Orange County Superior Mr. Donald Mettert, Court Visions Court, California Mr. Deno Kannes, Doell-Vision

770

Blanck, "Off the Record: Non-verbal Communication in the Courtroom," Stanford Lawyer (Spring 1987) (a).

"The Process ofField Research in the Courtroom," Law and Human Behavior, Vol. 11, No.4 (1987) (b).

Blanck, Rosenthal, and Cordell, "The Appearance of Justice: Judges' Verbal and Non Verbal Behavior in Criminal Jury Trials," Stanford Law Review, Vol. 38, No.1 (November 1985).

Chapper and Hanson, Intermediate Appellate Courts: Improving Case Processing, National Center for State Courts, Williamsburg, VA (forthcoming 1990).

Coleman, The Impact o/Video Use on Court Function: A Summary o/Curre'll Research and Practice, Federal Judicial Center, Washington, DC (1977) (a).

Video Technology in the Courts, U.S. Department of Justice, Washington, DC (October 1977) (b).

Conference of State Court Administrators, Court Reporting Practices Among the State Court Systems: Survey Results, National Center for State Courts, Williamsburg, VA (1984).

Coopers and Lybrand, "A Review of the Federal Judicial Center's Evaluation of Steno­ graphic and Audiotape Methods for United States District Court Reporting," Coopers and Lybrand, New York (1983).

Frank, Law and the Modern Mind (1930).

Golembiewski, Perspectives on Public Management: Cases and Learning Designs, F. E. Peacock, Itasca, II.. (2d ed. 1976).

Greenwood and Dodge, Maru;gement o/Court Reporting Services, National Center for State Courts, Denver, CO (l~ itS)

173 VIDEOTAPED TRIAL RECORDS

Greenwood et aI., A Comparative Evaluation of Stenographic and Audiotape Methods for United States District Court Reporting, Federal Judicial Center, Washington, DC (1983)

Heft, "Pros and Cons of Videotape Appeals," Louisville Lawyer 12 (fall 1987).

Heft and Niehaus, Letter to David Greene, President, Jefferson Audio Video, Inc., May 25, 1989.

Hudson and Easterling, The Appellate System in the North Carolina Court ofAppeals, National Center for State Courts, North Andover, MA (1980).

Kosky, "Videotape in Ohio," Judicature, Vol. 59, No.5 (December 1975).

Kramer, Comparative Outline ofBasic Appellate Court Structure and Procedures in the United States, National Conference of Appellate Court Clerks, Williamsburg, VA (1978).

Louisell and Pirsig, "The Significance of Verbatim Recording of Proceedings in American Adjudication," Minnesota Law Review, Vol. 38:29 (1953).

Lowe, A Literature Search and Analysis of Evaluations ofAlternative Court Reporting Technologies, National Center for State Courts, North Andover, MA (1988).

Michigan Supreme Court, "Manual for Court Reporters and Recorders," Michigan Supreme Court State Court Administrative Office, Lansing MI (1988).

Monahan and Steelman, Assessment of Current and Alternative Methods of Court Reporting in the Ninth Judicial Circuit Court, Orlando, Florida, National Center for State Courts, Williamsburg, VA (1987).

National Judicial College, Judicial Education: A Guide to Program and Faculty Develop­ ment, The National Judicial College, Reno, NV (1989).

National Center for State Courts, State Court Caseload Statistics: Annual Report 1987, National Center for State Courts, Williamsburg, VA (1989).

State Court Organization, 1987, National Center for State Courts, Williamsburg, VA (1988).

"Video Recording Evaluation and Guidebook Development Project (proposal)," Williamsburg, VA (February 1988).

Office of State Courts Administrator, "Computer-aided Transcription Pilot Project: A Preliminary Evaluation Report," Tallahassee, FL (April 1987).

Office of State Courts Administrator, "Computer-aided Transcription Pilot Project: Final Evaluation Report," Tallahassee, FL (April 1988).

774 Bibliography

Resource Planning Corporation, An Analysis of the Federal Judicial Center's Evaluation of Stenographic and Audiotape Methods for United States District Court Reporting, Prepared for National Shorthand Reporters Association and United States Court Reporter's Association (October 1983).

Saari, The Court and Free-Lance Reporter Profession Improved Management Strategies, Quorum Books, Westport, CT (1988).

Salvan, "Videotape for the Legal Community," Judicature, Vol. 59, No.5 (December 1975).

Shepards' Lawyer's Reference Manual, McGraw-Hill, Colorado Springs, CO (1984 Supp.).

Short & Associates, Inc., A Report to the Judicial Council on Videotape Recording in the California Criminal Justice System Second Year Findings and Recommendations, Sacramento, CA (1976).

Steelman, Assessing the Feasibility of Videotape for Making the Record of Proceedings in the Michigan Circuit Court for the Ninth Judicial Circuit, National Center for State Courts, North Andover, 11A (1987).

Steelman and Conti, An Evaluation of Kentucky's Innovative Approach to Making a Videotape Record of Trial Court Proceedings, National Center for State Courts, North Andover, MA (1985).

Steelman and Lowe, Evaluating the Use of Videotape for Making the Record of Proceedings in the Michigan Circuit Courts for the Sixth and Ninth Judicial Circuits, Technical Assistance Report, National Center for State Courts, North Andover, MA (1988).

Steelman and Monahan, Appraisal of Electronic Centralized Recording System in the Circuit Court ofMontgomelY County, Maryland, National Center for State Courts, Wil­ liamsburg, VA (1986).

Taylor, "The Video Record-An Experimental Alternative to Traditional Court Reporting," Colleague, Vol. 2, No.3, (August 1989).

Walker, "Context Transcripts and Appellate Readers," Justice Quarterly (1986) (a).

"The Verbatim Record: The Myth and the Reality," Discourse and Institutional Authority: Medicine, Education and Law, Norwood, NJ (1986) (b).

775