The Supreme Court wanted feedback on a pilot project using an audio-video record as the official appellate transcript in three Indiana courts. Lawyers at a recent discussion on the topic appear to favor pulling the plug.
“Not a single attorney who works with us enjoyed the experience of briefing a case,” said Stephen Creason, chief counsel in the office of Indiana Attorney General Greg Zoeller. Staff attorneys briefed 20 cases on appeal – 13 criminal and seven involving child-welfare issues.
While the project has been an interesting experiment, Creason said, the results don’t appear to present any efficiencies for appellate counsel. With the audio and video, he said, attorneys “took two to three times longer to review the transcript and prepare the brief.”
The AG’s office was able to meet its briefing deadlines, but that’s largely because more time was set aside to handle cases involving mandated A/V transcripts. “If all our attorneys had to do this, we couldn’t do it” within filing deadlines, Creason said.
“In the pilot we were able to adjust our schedules to make it work. In real life, I’m not sure that would work out,” he said.
Creason was among a panel of attorneys and judges who shared their impressions of the pilot program at a discussion April 9 hosted by the Indianapolis Bar Association. Launched in August 2012, the program undertaken by Supreme Court administration installed video cameras and microphones in a criminal court in Indianapolis, a juvenile court in Lafayette and a civil court in Fort Wayne.
Two other appellate attorneys on the panel said video transcripts pose problems and may delay cases, contrary to the intent of the pilot that aimed to expedite appeals. Marion County Public Defender Agency appellate counsel Patricia C. McMath said the time it takes to brief an argument using video transcripts is burdensome.
“A sterile (paper) record can be our friend,” McMath said.
The Indiana Court of Appeals hopes to review 15 cases from each court, and the panel of Judges Cale Bradford, James Kirsch and Melissa May hears each case that comes with an A/V transcript. Bradford said the pilot project adopts the same technology that has been used in Kentucky courts as the official record for nearly three decades.
“The judges and law clerks I talked to in Kentucky … are very comfortable with it,” Bradford said at the outset of the discussion. Toward the end, he reminded attorneys of the current status of A/V transcripts.
“This is a pilot project and not a fait accompli from the Supreme Court,” Bradford said.
View from the bench
Marion Superior Judge Mark Stoner presides in the court that’s sent a number of criminal cases to the Court of Appeals using a video transcript. Because no civil appeals had been generated with an A/V transcript from Allen County, Marion Superior Civil Division judges also were authorized to use Stoner’s court to generate cases using the technology.
“I have high praise for the technology,” Stoner said.
“You get a better context of what’s actually going on in the courtroom based on what you see,” he said. “We live in a video society and a video culture.”
Jurors seemed more attentive to exhibits when they were displayed on monitors, he said. He acknowledged watching monitors himself during trial.
The A/V system Indiana is using in its pilot comes from Jefferson Audio Video Systems of Louisville, which also supplies technology for Kentucky courts and others that use A/V records. Stoner said he intentionally experimented with the technology, which automatically switches to cameras and microphones nearest speakers. Judges or court staff may manually control the system, however.
“It was not very difficult for the judge to do,” Stoner said of manually controlling the system. He could control which camera was in use at a given time, but noted he couldn’t control camera angles or depth of field. He’d like to see split-screen capability as a future enhancement.
Concerns had been raised about how cameras might change court proceedings, but Stoner has seen none of that. Cameras were never on jurors, for instance, and “there was no concern on anybody’s part that attorneys were playing to the cameras,” he said.
“The audio was the record, the video was just a bonus,” he said. If at any point he had trouble hearing, “all I had to do was put the headphones on.” He said audio on the pilot system was “10 times better” than what’s currently in use in other Marion County courts – technology he considered state of the art.
Stoner said microphones were so sensitive that they could pick up whispered conversation and the sound of paper shuffling.
On the record
Frost Brown Todd LLC attorney Griffin Sumner is an appellate attorney based in the firm’s Louisville office who practices in both Indiana and Kentucky.
“It’s incredibly time-consuming from an appellate lawyer’s standpoint,” Sumner said of preparing appellate briefs using the A/V transcript. She said her colleagues routinely will order a paper transcript in Kentucky cases when the trial took more than two days.
Sumner explained that it’s more cost-effective for clients in long trials to order paper transcripts, because lawyers can use them to cut directly to the appellate arguments. The video transcript, on the other hand, may require viewing of the entire trial to know the case, costing a client far more.
Technology also hasn’t kept up in some Kentucky courts, she said. “There are still some counties that send me a VHS tape” containing the official trial court record.
Sumner did see promise in one advance that has been used in some Kentucky courts – electronically filed briefs that contain hyperlinks to the time-marked audio/video record. Creason, who said citing to the A/V transcript also is a challenge, agreed that could be desirable.
Attorneys also are concerned that the video record may lead appellate judges to reweigh evidence since they’ll be able to see with fresh eyes what they couldn’t before – a witness’s demeanor and body language, for instance.
Bradford doesn’t see that. “The person may look like Larry the Liar,” he said. “If the fact-finder found it credible, I’m done.”
Creason challenged that. “We know that appellate reweighing happens now,” he said, because the Supreme Court grants transfer on that basis. He said human nature is likely to sway decisions when the record is audio/video. “How can we control it?” he asked.
Lawyers on the panel said public agencies and attorneys performing pro bono work will be put upon if they’re required to view lengthy trials to brief their cases on appeal.
“I see the costs of civil appeals going up a lot more” if video transcripts are the record, Creason said. “Prosecutors’ offices and public defenders’ offices are going to hate this.”
Bradford said after the discussion that the Supreme Court has not set an end date for the pilot project, and that he was unaware of any proposal to expand the scope of the current pilot.•