Are electronics making court reporters obsolete?

OFFICIAL COURT reporters and their stenographic machines used to be as ubiquitous in a federal courtroom here as a judge, prosecutor or defense attorney.

Today, unless you're in a select few courtrooms, the chances of encountering one are as likely as finding a handwritten letter.

In fact, in federal district court in Philadelphia, only four of the 21 active district judges still rely on court reporters to record proceedings and produce transcripts.

The rest utilize digital audio recording equipment, as do all federal magistrate judges and many senior district judges.

Indeed, it seems that possibly the most high-tech federal district court is here in the eastern district of Pennsylvania.

The Administrative Office of the U.S. Courts says only 34 of the 600 active federal district judges in the United States have gone digital and half are in Philadelphia.

By law, each session of court must be recorded but the method of recording is left to the discretion of individual judges.

The clerk for U.S. District Court here, Michael E. Kunz, said digital courtrooms have put the federal courts in touch with working people.

"The average person can't come to the courtroom to listen to proceedings or come to the courthouse to look at records or has the money to order an expensive transcript," he said.

He said judges here have embraced the digital courtroom from the get-go.

He said Philadelphia was the pilot court for electronic sound recording in the early 1980s after officials here volunteered for the assignment.

In 1999 the Judicial Conference - which is the policy-making body for U.S. courts - authorized use of electronic audio recording to create official records and the first three electronic courtrooms here were introduced in 2001 and others were brought online in subsequent years.

In one case, a trial was conducted by videoconference with the judge in Philadelphia and the parties participating from Istanbul, Turkey.

Kunz said electronic courtrooms have revolutionized the way federal courts manage their cases and documents.

The system allows attorneys to file documents directly with the courts over the Internet - subject to redaction of personal identifying information such as social security numbers - and allows courts to file, store and manage their cases electronically.

Electronic courtrooms also enable courts to make their documents available to the public over the Internet. (Online access to court data is available through the Public Access to Court Electronic Records, or PACER.)

The U.S. District Court for the Eastern District of Pennsylvania was one of five federal district courts selected to be in a pilot program beginning in January 2008 that enabled digital audio files to be uploaded to PACER.

As a result, testimony during the 2008-2009 trial of former state Sen. Vince Fumo, for example, was uploaded twice daily to PACER and anybody with access to PACER could hear all the testimony.

Eight active district judges, eight senior judges and seven magistrates are participating in the pilot program, Kunz said.

One of the judges who has become a proponent of electronic courtrooms is U.S. District Judge Michael Baylson.

In a November 2008 memorandum and order, Baylson wrote:

"A public with quick and cheap availability to court proceedings through digital audio is a public which can better understand what happens in court."

Another, less obvious benefit is that electronic recording reduces costs to the public.

Court reporters, for example, make substantially more than electronic sound recording (ESR) operators and trial transcripts can cost thousands of dollars.

As courtrooms have become more digital, court reporters have become increasingly obsolete.

Just 10 years ago, there were twice as many court reporters in district court here as there are today.

The National Court Reporters Association maintains that there is "no substitute" for having a single person in charge of the transcript-making process from beginning to end, which "guarantees" the best record available.

One federal court reporter, who asked not to be identified, said that the benefits of electronic recording have been oversold by court officials.

Several judges who have not yet embraced the electronic courtroom say court reporters are necessary.

U.S. District Judge Stewart Dalzell said the main reason he still uses a court reporter is that a court reporter is able to keep a "more accurate record" of courtroom proceedings.

"When you have the human ear listening, you get a better record," he said.

"Maybe I'm just a dinosaur," Dalzell said half-jokingly, "but in our line of work, accuracy trumps transparency."

Another district judge who still relies on court reporters and agreed to speak only on background had concerns that courtroom technology was still evolving.

Some judges with electronic courtrooms have complained that when attorneys move about the courtroom, especially during trials, their voices are not picked up, resulting in an incomplete record.

A judge with a preference for a court reporter noted, for instance, that courtroom visitors must silence their cellphones because cellular signals interfere with the electronic recording system.

If the system improves, he might be persuaded to go digital, he said.

"But right now I want my court reporter," he said.

"If there is going to be an appeal, I want the court to have a clear, accurate and concise record. I don't want somebody coming back [to me] and saying, 'that's not what I said.' "

But some of the judge's colleagues see it differently.

In a 2008 order permitting a plaintiff to rely on the audio record rather than a transcript for a posttrial motion, Baylson wrote:

"The consequences of relying on the audio, rather than written, record are not profound.

"Although judges are used to relying on written transcripts of trials and testimony, a judge . . . can secure sufficient knowledge of the trial record from a digital audio recording, just as from a written transcript."

Others - including a few prosecutors - have speculated that judges who use court reporters do so because they don't want an audio record of proceedings that might embarrass them or present grounds for an appeal.

But court reporters dismiss that.

"These [judges] are appointed for life and can say anything they want," one said.

"If they want to make fools of themselves, they can."