The Case Against Electronic Recording: Protecting the Integrity of the Judicial Record

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The California Supreme Court is currently considering the case of Family Violence Appellate Project et al. v. Superior Courts of California, Case No. S288176, a case that has sparked a contentious debate over the use of electronic recordings in courtrooms. The California Lawyers Association (CLA) has filed an amicus curiae letter supporting the petitioners, arguing that the use of electronic recording is essential to maintaining a reliable record of oral proceedings. However, as court reporters, we must strongly oppose this position. Court reporters are the gold standard for preserving the judicial record, and replacing them with electronic recording technology would significantly undermine the accuracy, reliability, and integrity of court proceedings.

I. The Unparalleled Accuracy of Certified Court Reporters

The petitioners argue that electronic recordings can serve as a suitable replacement for live court reporters, but this assumption is fundamentally flawed. Court reporters provide real-time, human verification of spoken words, ensuring that transcripts are precise and comprehensive. Unlike electronic recordings, court reporters can:

  1. Clarify Ambiguous Speech: Court reporters can ask speakers to repeat themselves, clarify mumbled speech, or verify unclear legal terminology.
  2. Exclude Extraneous Noise: Courtrooms are filled with overlapping conversations, background noise, and interruptions. Court reporters are trained to filter out irrelevant noise while capturing essential dialogue.
  3. Provide Immediate Readbacks: Judges and attorneys frequently request readbacks during trials. Court reporters can instantly locate and provide verbatim excerpts from prior testimony.
  4. Ensure a Complete Record: Court reporters actively work to ensure that no testimony is lost due to technical failures, inaudible speech, or simultaneous talking—problems that plague electronic recordings.

II. The Inherent Failures of Electronic Recording Systems

The petitioners claim that electronic recording offers a viable alternative to court reporters, but real-world experience demonstrates otherwise. Electronic recording is fraught with technical and procedural issues, including:

  1. Audio Quality Issues: Courtrooms are unpredictable environments. Microphones often fail to pick up soft-spoken witnesses, individuals speaking with heavy accents, or multiple people talking at once.
  2. Equipment Malfunctions: Recordings are prone to technical failures, including power outages, software glitches, and corrupted files. Once lost, the record cannot be reconstructed.
  3. Difficulties in Transcription: Even when recordings are successfully captured, the process of transcribing them is arduous. Transcribers working from recordings often struggle with inaudible segments, homophones, and unclear speech patterns, leading to inaccuracies.
  4. Lack of Immediate Access: Unlike court reporters, electronic recording systems cannot provide on-the-spot readbacks, forcing courts to delay proceedings while waiting for transcription.

III. The Financial Burden of Electronic Recording is Misleading

A key argument in favor of electronic recording is cost reduction. Proponents claim that hiring court reporters is expensive, while electronic recording systems provide a cheaper alternative. This argument is misleading for several reasons:

  1. Upfront and Maintenance Costs: Implementing and maintaining electronic recording systems require significant investments in high-quality audio equipment, storage, IT personnel, and periodic software updates.
  2. Increased Costs of Transcription Services: Courts would still need human transcribers to convert audio recordings into official transcripts. The time-consuming nature of transcribing audio often results in higher costs compared to having a live stenographic reporter.
  3. Risk of Retrying Cases Due to Faulty Records: Inaccurate or missing records can lead to appeals, retrials, and increased litigation costs. Courts may ultimately spend more rectifying recording issues than they would by employing certified court reporters.

IV. Electronic Recording Threatens Access to Justice

The CLA claims that prohibiting electronic recording disproportionately harms litigants who cannot afford private court reporters. However, electronic recording poses an even greater risk to access to justice. Low-income litigants, self-represented individuals, and non-native English speakers are particularly vulnerable to the pitfalls of electronic recording. Without a court reporter ensuring a clear and complete record, these individuals may find their testimonies lost or inaccurately transcribed, leading to unfair rulings.

Moreover, the complexities of obtaining a settled or agreed statement, as suggested by the petitioners, are beyond the capacity of most self-represented litigants. Unlike a certified transcript from a court reporter, settled statements are subject to disputes, delays, and judicial discretion, making them an unreliable alternative for those seeking appellate review.

V. Protecting the Constitutional Role of Court Reporters

California’s prohibition on electronic recording in unlimited civil, family, and probate proceedings exists for good reason. The judiciary has a constitutional responsibility to ensure accurate and reliable records of proceedings. If the Supreme Court were to overturn this prohibition, it would undermine the very foundation of appellate review and weaken the credibility of court records. Without certified court reporters, appellate courts would struggle to review cases effectively, increasing the likelihood of judicial errors and miscarriages of justice.

Conclusion: Preserving the Gold Standard in Court Reporting

The argument that electronic recording is a necessary response to a shortage of court reporters is a false dilemma. Instead of replacing court reporters with unreliable technology, the state should invest in recruitment, training, and incentives to ensure that California courts have an adequate number of professional reporters. The court reporting profession is evolving, with advancements in real-time transcription voice writing augmenting traditional stenography. These innovations should be embraced, rather than discarded in favor of inferior recording technology.

For the sake of judicial integrity, fairness, and accuracy, the California Supreme Court must reject any attempt to replace certified court reporters with electronic recording. The preservation of the official record is too critical to be entrusted to machines. The courts and the public deserve nothing less than the gold standard of court reporting.

Published by stenoimperium

We exist to facilitate the fortifying of the Stenography profession and ensure its survival for the next hundred years! As court reporters, we've handed the relationship role with our customers, or attorneys, over to the agencies and their sales reps.  This has done a lot of damage to our industry.  It has taken away our ability to have those relationships, the ability to be humanized and valued.  We've become a replaceable commodity. Merely saying we are the “Gold Standard” tells them that we’re the best, but there are alternatives.  Who we are though, is much, much more powerful than that!  We are the Responsible Charge.  “Responsible Charge” means responsibility for the direction, control, supervision, and possession of stenographic & transcription work, as the case may be, to assure that the work product has been critically examined and evaluated for compliance with appropriate professional standards by a licensee in the profession, and by sealing and signing the documents, the professional stenographer accepts responsibility for the stenographic or transcription work, respectively, represented by the documents and that applicable stenographic and professional standards have been met.  This designation exists in other professions, such as engineering, land surveying, public water works, landscape architects, land surveyors, fire preventionists, geologists, architects, and more.  In the case of professional engineers, the engineering association adopted a Responsible Charge position statement that says, “A professional engineer is only considered to be in responsible charge of an engineering work if the professional engineer makes independent professional decisions regarding the engineering work without requiring instruction or approval from another authority and maintains control over those decisions by the professional engineer’s physical presence at the location where the engineering work is performed or by electronic communication with the individual executing the engineering work.” If we were to adopt a Responsible Charge position statement for our industry, we could start with a draft that looks something like this: "A professional court reporter, or stenographer, is only considered to be in responsible charge of court reporting work if the professional court reporter makes independent professional decisions regarding the court reporting work without requiring instruction or approval from another authority and maintains control over those decisions by the professional court reporter’s physical presence at the location where the court reporting work is performed or by electronic communication with the individual executing the court reporting work.” Shared purpose The cornerstone of a strategic narrative is a shared purpose. This shared purpose is the outcome that you and your customer are working toward together. It’s more than a value proposition of what you deliver to them. Or a mission of what you do for the world. It’s the journey that you are on with them. By having a shared purpose, the relationship shifts from consumer to co-creator. In court reporting, our mission is “to bring justice to every litigant in the U.S.”  That purpose is shared by all involved in the litigation process – judges, attorneys, everyone.  Who we are is the Responsible Charge.  How we do that is by Protecting the Record.

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