To Whom it May Concern:
The Coalition of Arizona Certified reporters respectfully wishes to share an opinion about the proposed Rule entitled R-20-0013, Petition to Amend Various Rules of Procedure Related to Creating the Verbatim Record of Judicial Proceedings.
We are in OPPOSITION to this rule change for many reasons.
It is our opinion that R-20-0013 is a mirror image of the proposed statutory changes that were proposed earlier this year in HB2355, and that Bill was not passed. The proposed language in R-20-0013 is in direct conflict with what the legislature found was in the best interest of the public; namely, to keep the current practices in place where certified reporters are mandated, which is to cover grand jury proceedings, felony jury trials, death penalty trials, initial determinations of sexually violent person status, and proceedings on a request for authorization of abortion without parental consent. It was found that these court matters were too important to risk not having a verbatim record for appeal.
We join in ACRA’s Minority Position Statement and dissenting opinion following the Task Force meetings and feel it would be duplicitous to reiterate the same information contained in that submittal.
Claims have been made about the shortage of certified reporters. There is still a very affordable brick and mortar school teaching court reporting in the Phoenix area as well as many online institutions. There are programs called “A to Z” and “Project Steno” which allow students to see what it is all about before signing up in a formal program, which has lowered the drop-out rate. Since this claim has been made last May, the “Request a Reporter” program through Arizona Certified Reporters Association has been in effect and has covered every assignment with the exception of when a certified reporter was requested on a Friday for a Monday hearing in an outlying area, so these false claims are not the reality of certified reporter availability in Arizona.
If this rule change is successful, it could have the effect of preventing future certified reporters from entering this career field from the perceived erroneous notion that there is no demand for certified reporters, which would further exacerbate the situation.
Some states have chosen to employ digital recording instead of a live certified reporter, and the results included increased costs, equipment failures that resulted in expensive retrials, constant maintenance and upgrades, and higher transcription costs for inferior transcripts or no transcripts at all if the equipment failed.
Texas went to digital recording, then brought back certified reporters citing that it was more cost effective and efficient, and no digital recording can provide realtime, something only a human can do.
New Mexico also tried using a recording system, and then brought back certified reporters citing unexpected costs, backlog of cases at the appellate level, and additional personnel costs.
Florida’s Supreme Court is currently reviewing an appellate decision to determine what the official record is, whether it is the recording or the transcript. Having the recording be the official transcript is dangerous, as it also records confidential conversations between clients and attorneys on a daily basis. A certified reporter knows what is on the record and what is not on the record.
Federal courts took part in a two-year study and determined that with recorded testimony, it took too long to find a specific portion when looking for it.
New York has prohibited the use of recording devices and requires a certified reporter based on complaints about the quality of transcripts generated by electronic recordings.
Kentucky reported that the use of recording equipment resulted in retrials at much cost, and too much time spent by attorneys reviewing the recordings.
Illinois spent the money to install recording devices, but they sit idle. The judges refuse to use it, stating they do not want to watch television.
Oregon has called for the return of certified reporters due to missing or inaudible recordings, including from a murder case and complex civil cases. Attorneys were hiring their own certified reporters for fear of an inaccurate record.
Hawaii had a disastrous loss of nearly 100 grand jury indictments due to an equipment malfunction and now relies exclusively on certified reporters.
Nevada tried recording equipment, and after three years made the decision that the costs were higher, and it is an inferior service compared to a certified reporter.
All of these states made the poor decision to rely exclusively on a recording system and found out the hard way – at the expense of the taxpayers and the litigants – that it was the wrong choice every time.
As far as the false notion that transcripts would be produced in a timelier manner, that is simply not the truth. Certified reporters are given deadlines for transcripts and are supervised and can be penalized for untimely transcript production. There is no penalty or oversight for outside transcribers. The accountability factor is gone, and the pride in workmanship is gone. One needs only to look at the Court of Appeal Transcript Due index to see the constant and voluminous past due transcripts arising from the digital recording. In fact, in these difficult times with Covid-19, official certified reporters have stepped in and taken on transcribing some of the outstanding digital recordings where no certified reporter was present in order to alleviate this backlog of past due transcripts.
Electronic recording is a wonderful tool, but it will never replace a live certified reporter in the courtroom. During the legislative session earlier this year regarding HB2355, Representative Domingo DeGrazia made the comparison of a skydiver to a electronic recording. He explained that the sky diver has a primary parachute and an emergency parachute. He compared relying on a recording to throwing away the main parachute and relying on the emergency backup chute. Why would someone endanger their life in that way?
Yet in the courtroom on a daily basis, peoples’ lives and liberty are at stake, and this Rule is throwing away the main parachute to rely on an emergency backup. The difference is the sky diver has a choice. The citizens of Arizona aren’t making this choice. The citizens of Arizona deserve better.
Arizona citizens deserve to have their right to a verbatim record and their right to justice upheld, and it would be a disservice to all litigants to take the certified reporter out of the courtroom.
Certified reporters have been ahead of the rest of the legal system in applying digital technology in the workplace. Reporter-based technologies such as realtime enhance the functioning of the judicial system in both headline trials and everyday depositions. Embracing technology that supports and enhances the efficient operations of the courts is one thing; naïve dependence on technology and the elimination of human judgment and wisdom is quite another. Put simply, employing the services of a realtime certified reporter in a well-managed courtroom ensures a complete, accurate, secure, and instant record of what was said for immediate use by attorneys and judges. Digital audio or video cannot make that guarantee.
In closing, if this proposal is truly trying to solve a perceived problem and to SUPPLEMENT certified reporters in ONLY outlying counties that are not able to obtain a certified reporter, as has been repeatedly stated and argued by the Administrative Office of the Courts, rather than eliminating ALL certified reporters in ALL court hearings as this proposal proposes, the language could and should be rewritten to address those specific matters instead of this complete rewrite of the rule which flies in the face of the legislative decision and public best interest. Regardless, the statutorily mandated hearings of grand jury proceedings, felony jury trials, death penalty trials, initial determinations of sexually violent person status, and proceedings on a request for authorization of abortion without parental consent should always be protected and require a certified reporter to create and protect the record.
Much time and effort was put into educating the public, attorneys, and judges about the proposed language changes and the dangers it poses to all litigants and their right to have a verbatim record preserved for appellate purposes, and their voices were heard. We are raising our voices again.
We are urging that this proposed Rule change be denied.
COALITION OF ARIZONA COURT REPORTERS
c/o Angela Miller
623-975-7472 [email protected]