Collaboration for Justice Chicago Appleseed Fund for Justice / Chicago Council of Lawyers

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1 Collaboration for Justice Chicago Appleseed Fund for Justice / Chicago Council of Lawyers Upholding due process rights of indigent and pro se litigants by providing court recording equipment in Cook County September The Collaboration for Justice of the Chicago Appleseed Fund for Justice and the Chicago Council of Lawyers has been working with Chief Judge Timothy Evans of the Circuit Court of Cook County, LAF, and pro bono counsel at DLA Piper to research the absence of court reporting in certain Cook County courtrooms, the effects that this has on access to justice, and the constitutional implications of this practice This policy brief describes Chicago Appleseed s efforts to ensure access to justice and to uphold the due process rights of individuals by advocating for the use of court recording devices in courtrooms that do not have court reporters. Many courtrooms in Cook County currently operate without court reporters while the number of pro se litigants appearing in these court rooms has steadily increased. For many pro se litigants, hiring a privately-paid court reporter is cost prohibitive which creates an access to justice problem because no appropriate record for exercising appellate rights exists. Although there are alternative ways to preserve a record, many pro se litigants are unaware of these options or do not understand the specific rules required to take advantage these options, and their appellate rights are effectively forfeited as a consequence. A cost-effective solution to this problem is the use of automated court-recording equipment. This practice has been adopted in states across the nation, as well as in some Cook County courts. However, more recording devices are needed to fill the gaps in those courtrooms where reporters are unavailable. This brief first outlines the constitutional and state-law issues at stake when a courtroom without a court reporter also lacks recording equipment. Second, it describes the specific problems this causes in Cook County and the work that Chicago Appleseed has done to discover the access to justice issues that exist in our community. Finally, it describes a proposal to the Illinois Supreme Court to fund court recording devices in Cook County courtrooms. 1 Collaboration for Justice

2 CONSTITUTIONAL IMPLICATIONS OF DENYING COURT RECORDING EQUIPMENT i The Supreme Court has interpreted the federal Constitution to require all states to provide low-income litigants with the means to obtain adequate and effective appellate review in civil matters. A series of Illinois cases established that bystanders reports are constitutionally sufficient to provide adequate and effective appellate review. However, these cases do not reflect the findings of social science research regarding memory, the realities of obtaining a bystander s report for many low-income litigants, and the affordable costs of recording technology in today s day and age. A. United States Supreme Court Precedent United States Supreme Court precedent on the issue of access to transcripts for appeal essentially establishes two points: (1) any constitutional challenge involving a right to transcript in a civil case needs to focus on state controls or intrusions on family relationships rather than mine run civil actions ; and (2) any constitutional challenge to Illinois practice of using bystanders reports must argue that this practice does not provide adequate and effective appellate review or an equivalent report of the events at trial to indigent litigants. The U.S. Supreme Court first encountered this issue in Griffin v. Illinois, 351 U.S. 12 (1956). The indigent litigants in Griffin challenged an Illinois rule that essentially prevented a litigant from appealing a criminal conviction unless he could pay for a transcript of the trial proceedings. Id. The court upheld the due process rights of the litigants in that case, with Justice Black stating that to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. Id. at 19. However, the Court commented that: We do not hold, however, that Illinois must purchase a stenographer s transcript in every case where a defendant cannot buy it. The Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants. For example, it may be that bystanders bills of exceptions or other methods of reporting trial proceedings could be used in some cases. Id. at 20. A later Supreme Court decision confirmed this stance, stating that alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant s contentions arise. Draper v. Washington, 372 U.S. 487, 495 (1963). A series of later cases extended the precedent of Griffin, requiring at least an equivalent report of the events at trial, to include cases in which the indigent defendant did not face incarceration (Mayer v. Chicago, 404 U.S. 189 (1971); to divorce proceedings (Boddie v. Connecticut, 401 U.S. 371 (1971); and to challenges to termination of parental rights M.L.B. v. S.L.J., 519 U.S. 102 (1996). However, the court declined to extend the right to include waiving bankruptcy fees (United States v. Kras, 409 U.S. 434 (1973), or waiving the fee for review of agency decisions that reduce welfare benefits (Ortwein v. Schwab, 410 U.S. 656 (1973). Instead, the Court made clear that constitutional requirements to waive civil court fees 2 Collaboration for Justice

3 are the exception and not the rule, and that waiver of fees is only required when there is a fundamental interest at stake. United States v. Kras. B. Illinois Precedent Following Supreme Court precedent and relying on Illinois Supreme Court Rule 323, Illinois courts have repeatedly held that the absence of a transcript for appeal is not unconstitutional. In People v. Hopping, 60 Ill. 2d 246, 251 (1975), the Illinois Supreme Court followed Griffin, Draper, and Mayer, holding that a bystander s bill of exceptions was an acceptable alternative method of reporting proceedings. In their decision in Hopping the Illinois Supreme Court cited Rule 323, stating that it provides for the preparation of a proposed report of proceedings by the appellant in the event that no verbatim transcript of the proceedings is available. Hopping, at 253; Ill. S. Ct. R. 323(c). This holding was followed in a number of subsequent Illinois cases. C. The problem with bystanders reports as a means to adequate and effective appellate review Bystander reports are assertive eyewitness recollections personal statements recounting what happened at trial. However, despite the line of precedent holding that bystanders reports are a constitutional substitute for stenographer transcripts, there are significant indications that such reports in fact do not support adequate and effective appellate review. First, current research on human memory indicates that such reports are likely inaccurate accounts of what actually occurred at trial; and second, many pro se litigants are unaware of the availability of bystanders reports as a means to obtaining a record. Installing court recording equipment is a cost effective way of remedying these problems by ensuring access to an accurate record and upholding the due process rights of indigent litigants. 1. The current research on human memory In the last 30 years, significant research has been done on human memory and the reliability of eyewitness testimony. ii While much of this research has been focused on the reliability of eyewitness identification, significant findings are applicable to the use of bystanders reports as reliable court records. Bystanders reports are essentially eyewitness recollections of what a person saw or heard in a courtroom. The research on malleability of memory, susceptibility to misinformation from other witnesses, and the inevitability of memory decay are highly relevant to the accuracy of bystanders reports, and therefore are relevant to the constitutionality of the use of bystanders reports in place of official court records. 2. Indigent litigants are unaware of bystanders reports as an option for creating a record Even if we ignore the issues raised in the previous section, bystanders reports are not an adequate and effective substitute for the presence of a court reporter. The vast majority of pro se litigants are unaware of the availability of such reports, and 3 Collaboration for Justice

4 often do not find out about their right to use bystanders reports until the 28 day statutory period for serving the report is past. The demonstrated lack of knowledge about the availability of bystanders reports seriously threatens the viability of these reports as adequate substitutes for court records. Additionally, even when pro se litigants are aware of the availability of bystanders reports, the vast majority of these litigants are either unaware of, or do not understand the procedural rules for obtaining and serving a bystander s report. Additionally, they may not fully comprehend which facts are necessary to include in the report for purposes of appeal. The line of cases upholding the constitutionality of bystanders reports as an adequate and effective substitute are outdated and not supported by current research and data. In our day and age, court recording equipment is not cost prohibitive, and is likely the way of the future for courtrooms across the country. Given the current research on human memory, and the knowledge that we have acquired over the years regarding litigants awareness of, and ability to use bystanders reports, it is time to fund court recording equipment in courtrooms that do not have court reporters. CHICAGO APPLESEED S WORK TO ADDRESS THIS ISSUE IN COOK COUNTY Located in the northeastern section of Illinois, Cook County is the second most populous county in the nation, with a population of over 5 million. The Circuit Court of Cook County is the largest judicial circuit in the State of Illinois and one of the largest unified court systems in the world. More than 1.5 million cases are filed each year, and an increasing number of these cases are brought by pro se litigants. In 2014, Cook County operated with a projected budget deficit of $152 million. As a result, the County is providing fewer court reporters to transcribe the proceedings in Cook County courtrooms. Many parties have turned to hiring their own private court reporters. Unfortunately, for the majority of pro se litigants, hiring a privately-paid court reporter is not an option. A number of private attorneys and legal assistance organizations approached Chicago Appleseed about this issue, which prompted our investigation into court reporting in Cook County. Common issues arising from the lack of court reporting were loss of appellate rights and conflicting recollections of prior hearings by each litigant as well as the court. A. Interviewing legal aid organizations Chicago Appleseed staff members have interviewed attorneys who have documented a lack of fairness and possible violations of due process that cannot be exposed without a court record. The results of these interviews have highlighted the significance of this access to justice issue. While waiting for their own cases to be called, attorneys from LAF have witnessed unrecorded judges in landlord/tenant disputes award plaintiffs possession of the subject premises without requiring plaintiff to establish a prima facie case; allow a plaintiff s attorney to testify about facts outside the attorney s personal knowledge; tell a pro se defendant that there is no defense to a joint forcible action; and deny a pro se defendant an opportunity to speak. These attorneys believe that a court record must be available to insure that every litigant gets the due process to which they are entitled. 4 Collaboration for Justice

5 Attorneys at Cabrini Green Legal Aid report that they have witnessed judges rule without giving people an opportunity to be heard and they have also witnessed judges deny discovery rights. Because there is no record of these errors, there is no way for a litigant to challenge the decisions. In fact, one legal aid attorney observed that if attorneys from her organization want to make sure that the law is upheld, they must bring a court reporter, despite the financial burden to her non-profit legal services agency. B. Enlisting community partners Since Chicago Appleseed began working on this issue, a number of legal aid organizations have indicated their support of this work, and emphasized the problems that the absence of court reporters has caused in their work. Chicago Appleseed has enlisted the support of DLA Piper, LAF, Cabrini Green Legal Aid, Lawyers Committee for Better Housing, Center for Disability and Elder Law, CARPLS, Chicago Legal Clinic, Chicago Volunteer Legal Services, the Shriver Center, the Legal Aid Society, and John Marshal Law School. CHICAGO APPLESEED S PROPOSAL TO THE ILLINOIS SUPREME COURT To remedy this access to justice issue, Chicago Appleseed has proposed that the Illinois Supreme Court fund court-recording equipment for courtrooms that currently operate without court reporters. Digital recording represents a practical, economical, and effective way of creating a reliable record in courtrooms where court reporters are not present. Digital recording equipment has already been piloted in Cook County, and the use of court recording devices has expanded to juvenile justice and child protection courtrooms. Chicago Appleseed s proposal asks the Illinois Supreme Court to fund an expansion of the use of court recording equipment to provide access to justice for all litigants, regardless of which court they appear in. There are a number of different models that could be adopted, which are outlined below. Additionally, the initial investment in court recording equipment will likely save costs over time, and ameliorate the expected shortage of court reporters in years to come. A. What are the possible models that could be used Any model that Cook County adopts must establish procedures delineating responsibilities for support personnel to ensure the creation of a reliable record through the use of audio technology, provide means to have the recording transcribed, and provide for the safe keeping of records. This will require the selection of appropriate recording technology and an effective staffing model. Below are some models that have been used in other jurisdictions. 1. Audio recording technology Digital recording is currently the state of the art technology. This technology audio records a court proceeding using digital technology that can be saved to a CD, DVD, network drive, or server. Most courtrooms that utilize this technology have 5 Collaboration for Justice

6 microphones strategically placed throughout the courtroom where judges, attorneys, parties, witnesses, and juries are located. There are three types of digital recording technology: portable devices, standalone workstations, and remote systems. Portable devices allow for recording in one location at a time and are usually operated by a digital court reporter, judge, or magistrate. Non-portable systems are permanently located in a courtroom and are usually operated by a digital court reporter. Finally, remote systems record audio or video to a server monitored by a digital court reporter located in a central control room or off-site. 2. Staffing models Although court-recording equipment eliminates the need for someone to manually create a stenographic record, digital court reporters are essential to the operation of the equipment. Digital court reporters are necessary for digitally tagging certain elements of the case, including the case number, participant names, and key events of the proceeding. The tags are digitally saved with the recording and serve as an index for playback and for creating a transcript. A digital court reporter may also be necessary to provide playback during a proceeding, as requested by the judge. There are generally three staffing models for digital court reporters. First, under the contract model, court reporters provide services on a fee basis. Hiring, firing, supervision, terms and conditions of employment and compensation are determined by contract or administrative order. Alternatively, under an entirely employee-operated system, court personnel provide all recording services. Finally, under a hybrid model, judicial circuits combine features of the contract model and the employee model. In some jurisdictions, clerk of court staff perform court-reporting functions. The functions performed by clerk staff range from monitoring proceedings recorded using cassette tapes to operating digital recording equipment and tagging recordings. Some circuits contract for these services from the clerk s office, whereas in other circuits, clerks provide services free of charge. For the majority of proceedings recorded, a transcript or copy of the recording is never requested. However, if a transcript is requested, the digital recording is characterized as preliminary to the final record of a judicial proceeding and a court reporter is needed to transcribe the final record. Unreviewed, unedited digital recordings that may contain privileged information and matters extraneous to the judicial proceeding are confidential by statute or rule. They are not considered final evidence of the knowledge to be recorded. Only the final record constitutes an official transcript. 3. Funding Technological advances over the past several years actually make an investment in court-recording equipment an attractive option for a county with significant budget constraints. In light of these restraints, funding by the Illinois Supreme Court, as supplemented if necessary by a public-private partnership could allow the installation of digital audio recording equipment in the Cook County court system on an asneeded basis. The expenses of this program would presumably be limited to start-up costs, with no foreseeable need for ongoing expenditures. Using the public-private 6 Collaboration for Justice

7 partnership model would allow the Cook County court system to make this capital investment without incurring any debt. In fact, there is some evidence that a project like this could provide the Cook County court system with long-term cost savings. iii Not only could court recording equipment reduce the costs incurred by hiring court reporters, but it may also help address a shortage in court reporters as the number of court reporters continues to decline due to aging and a shortage of young people entering the field. iv Most importantly, installing digital audio recording devices today would be a cost-effective step towards enhancing public confidence in the judiciary and ensuring access to justice for all. CONCLUSION As Justice Black stated in Griffin v. Illinois, to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. Unfortunately, this is exactly what is happening because of the absence of court reporting in certain Cook County courtrooms. Despite legal recognition that bystanders reports are sufficient for purposes of appeal, this alternative has not proven to be adequate or effective. Chicago Appleseed s research has demonstrated the miscarriages of justice that have occurred as a result, and we have offered a cost-effective solution. It is time for the Illinois Supreme Court to fund court recording equipment for all Cook County courtrooms in need of it. i The Constitutional analysis in this brief was provided in significant part by pro bono attorneys at DLA Piper. ii State v. Henderson, 27 A.3d 872, 877 (N.J. 2011). iii A pilot study in California found that courts could save $28,000 per courtroom on an annual basis by using audio equipment instead of court reporters to produce the official record. Our View: State Courts Must Enter Electronic Age, MERCEDSUNSTAR.COM (Feb. 4, 2013), iv As of July 2015, there were 42 court reporter vacancies in courtrooms across Illinois, and an expectation that in the next five to fifteen years 75 percent of the current staff could be eligible to retire. Illinois courtrooms facing shortage of court reporters, THE STATE JOURNAL-REGISTER (Jul. 31, 2015), 7 Collaboration for Justice

8 The Collaboration for Justice: Chicago Appleseed Fund for Justice An Affiliate of the Appleseed Network of Social Justice Centers Chicago Council of Lawyers Chicago s Public Interest Bar Association 750 N. Lake Shore Dr. 4 th Floor Chicago, Illinois Phone: Collaboration for Justice

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