A Queens Family Court judge blasted the use of electronic recording systems in place of court reporters, saying the machines frequently produce useless records of trial proceedings and “appears to lack any legislative sanction.”
Judge John Hunt (See Profile) said that while the Legislature has allowed temporary experiments with electronic recording of court proceedings, those experiments expired long ago. He suggested that the Office of Court Administration had no right to replace court reporters with recording gadgets and opined that the “For the Record” system that OCA installed in several courtrooms doesn’t work very well.
“The present electronic recording of court proceedings is … completely unregulated as there is no court rule (valid or not) governing electronic recording of proceedings conducted before judges and justices in courts of record,” Hunt wrote in Matter of Shannel P., D-21117/13. “Electronic recording is being conducted in a haphazard manner by distracted judges and court personnel having other duties in the courtroom, often producing unintended results such as unintelligible records of trial proceedings.”
Hunt expressed his disdain for electronic recording, and his reservations about its legality, in the context of a juvenile delinquency proceeding involving a 13-year-old girl charged with felony and misdemeanor violations of animal cruelty laws.
On the third day of a fact-finding hearing in January, Queens apparently had a shortage of court reporters, and one was not assigned to Hunt’s courtroom that day. “It was apparently assumed by court managers that the court would simply default to using the ‘For the Record’ electronic recording system which has been installed in many courtrooms across the state,” the judge wrote.
Counsel for both sides objected to changing recording methods mid-trial. Hunt was about to delay the proceeding when local officials were able to find a court reporter, and the matter proceeded on schedule.
But “given the continuing shortage of official court reporters due to fiscal constraints and the proliferation of electronic recording in trial courts” and the likelihood of the issue recurring in the future, Hunt discussed at length the propriety of electronic recording.
Hunt said Judiciary Law §295, which dates to 1909, requires stenographers to “take full stenographic notes of the testimony and of all other proceedings in each case tried or heard.”
He said the Legislature in 1992 allowed a two-year limited exception to that requirement and authorized the courts to use mechanical recording devices. After the experiment ended in 1994, the Legislature enacted §290-a of the Judiciary Law, which permitted court officials to use recording devices in certain proceedings on a trial basis. Two years later, the Legislature extended §290-a through June 1999, when it expired.
But Hunt said the Legislature has never repealed §295.
“The Judiciary Law could not be more clear,” Hunt wrote. “The statute directs in unmistakable language that each official stenographer ‘must take full stenographic notes of the testimony and of all other proceedings in each case tried or heard’ and ‘complete stenographic notes of each ruling or decision of the presiding judge,’” Hunt wrote. “The authority granted by the Legislature has long since expired, yet the electronic recording of proceedings in some courts of record continues unabated and beyond what the Legislature had authorized.”
Hunt urged the state to “meet its obligation to accurately record Family Court proceedings by providing sufficient official court reporters or by obtaining legislative authority to record court proceedings electronically and by providing trained personnel to operate the electronic recording system.
“The children, parents, and others having their rights adjudicated by the Family Court are entitled to nothing less,” he continued.
Assistant Corporation Counsel Faith Lovell prosecuted the case. Shannel was represented by Robert Georges of Manhattan.
David Bookstaver, spokesman for the Office of Court Administration, said “there is a practical realistic need for electronic recording in our courts and while we place great value on court reporters, in many areas of the state it is a dying art. Practically, this is of enormous benefit to the court system.”
Bookstaver said that the Legislature has never barred electronic recording and, consequently, OCA, views the matter as an administrative prerogative.