EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 2, 2017

The Supreme Court of Georgia's Ruling in Undisclosed, LLC v. The State

On Monday, the Supreme Court of Georgia ruled against Undisclosed in our attempt to get the court reporter's recording of the Joey Watkins trial. In doing so, Georgia's highest court made one decision that will greatly help future parties seeking access to court records and one decision that will greatly curtail that access. So, what did the Supreme Court of Georgia rule and why? 

In Undisclosed, LLC v. The State, we had sought the ability to access and copy the court reporter's recording of the Joey Watkins trial under Uniform Superior Court Rule 21, which provides that

All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.

Our goal, of course, was to copy that recording so that we could play portions of the trial on our podcast so that listeners could hear testimony from the witnesses' own mouths. The State opposed this effort on two grounds.

First, they claimed that Rule 21 only creates a right to access, not a right to copy. As the Supreme Court of Georgia noted,

Whether Rule 21's right of access to court records includes the right to copy is a matter of first impression. Rule 21 expressly states that court records are available for “public inspection,” but does not specifically address the ability to copy records. The State asks us to construe the term “inspection” according to its plain and ordinary meaning, as we ordinarily do when construing statutes and court rules.

The Supreme Court of Georgia disagreed, concluding that

A right to read but not copy court records would be of limited use to this purpose. Indeed, the right of access is not complete unless it includes the right to copy. See Whorton v. Gaspard, 393 SW2d 773, 774 (Ark. 1965) (“The right to inspect ... carries with it the right to make copies, without which the right to inspect would be practically valueless.”); Fuller v. O'Donnell, 17 So2d 607, 607 (Fla. 1994) (“[T]he right to inspect would in many cases be valueless without the right to make copies.”); 37 Cent. L. Journal 399 (1893) (“[T]he right of examination must necessarily carry with it the right to make whatever copies or other memoranda are necessary to effectuate the purpose for which the examination is sought, or else the grant of the mere right of inspection is nugatory.”).

This is a pretty big deal. If someone down the road wants to investigate a possible wrongful conviction case, she can now not only look at trial transcripts and exhibits; she can also make copies so that the evidence can be reviewed and compared with other evidence.

The State's second argument was that a court reporter's recording was not a court record. The Supreme Court of Georgia agreed with this argument, finding that the phrase "court records" only covers documents filed with the court. And, according to the Supreme Court of Georgia,

The parties disagree about much, but one thing they seem to agree on is that court reporters rarely, if ever, file their audio recordings with the court. It is the transcript of the court proceedings that is the public record of the proceedings once it is filed.

To me, though, this seems like a distinction without a difference. A court reporter files a typed transcript of a trial that is created based upon listening to the recording of the trial. And, because no human being is perfect, there are bound to be errors in the transcription. So, why give access to the trial transcript and not the more accurate source document from which it is derived? Indeed, wouldn't giving access to the recording be essential for someone to figure out whether there was a transcription error?

Now, in fairness, as Bill Rankin pointed out to me, the court's opinion does allow for a possible exception. In footnote 12, the court notes that

Our ruling here does not preclude a party from accessing a court reporter's audio recordings in some situations. The Act provides a party who believes that the transcript “does not truly or fully disclose what transpired in the trial court” with the ability to correct the transcript, and the matter would be set for a hearing. See OCGA § 5-6-41 (f). Nothing in the Act would preclude a party from filing a subpoena to obtain the recordings for the purpose of correcting the transcript. The audio recordings may be relevant and material to the issue of what transpired at court and complying with a subpoena for the recordings would not generally be oppressive. See Price v. State, 269 Ga. 222, 224 (2) (498 SE2d 262) (1998) (trial court erred in quashing subpoena for documents that were relevant to issue because complying with the subpoena was not unreasonable and oppressive).

But it's easy to see the possible limitations of such an exception. Imagine, for instance, that, as in many cases, one attorney handles the trial and another attorney handles the appeal. In such a case, the new attorney is likely to have no idea that there could be several errors in the trial transcript because she wasn't present for the original trial.



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“[T]he right of examination must necessarily carry with it the right to make whatever copies or other memoranda are necessary..."
Hmm. I mean on the face it sounds great, but the “other memoranda”? Could this allow a Court to block copying with a claim that taking notes is all that is “necessary”. Why wouldn't the Court just choose unambiguous wording?

Posted by: Anonymouse | Nov 2, 2017 1:33:25 PM

Couldn't any request for court audio simply be accompanied by a promise that the accuracy of the audio's transcript will be assessed in the process? That way the court would be getting a volunteer proofread of their "official" document on record -- a service they otherwise either wouldn't receive or would have to pay money for -- win/win for everyone right?

Lol, and even if the court doesn't want it, if for some odd reason they don't care about accuracy in their official documentation, couldn't the defense just claim the primary reason they want access to the audio is for that purpose? Each request would be for such and such reason.. AND to verify the transcript's accuracy--Because the defendant is pretty sure there are errors contained in the transcript's opening statements, witness testimony, cross examination, etc...

And OK fine, would that kind of be formally institutionalized bullshit? Sure, it would be formally Institutionalized bullshit, but since when is that a problem? I can think of a ton of examples, but one that leaps first to mind is how that would be just like the formally institutionalized bullshit "non-race based reasons" prosecutors have to provide accompanying each strike they give in voir dire when they are removing every black juror from the pool. Everyone knows it's bullshit, but that doesn't stop courts from accepting the proffered "non-race-based reason" each time anyway.

What I'm saying is this: If you want the audio recordings for use in the podcast now moving forward, why don't you instead just say Joey thinks there's errors in the transcript, and wants to correct them? How is that any different than the voir dire example?

...well, maybe I know why it's different..if it is different.. then this is why: courts have no problem accepting blatant bullshit reasoning for motions, but it's only so long as the prosecution is the one proffering it.

Posted by: Paul | Nov 2, 2017 8:36:14 PM

All I can say is: OMG. I'm glad I'm retired. Keep up the good work at Undisclosed.

Posted by: JUNE RITTMEYER | Nov 3, 2017 6:27:26 AM

Colin, what would be the threshold for requesting access to the court recordings for the purpose of ensuring the accuracy of the transcript? Would a party need to present some evidence of a potential discrepancy? I would imagine that it would be nearly impossible for someone that was present at a proceeding, even if they took extensive notes, to read through a transcript and be 100% certain that the transcription was accurate. As you note, it would be significantly more difficult for a party that was not present to have any idea as to whether a transcript is accurate or not.

Posted by: Paul | Nov 3, 2017 1:51:32 PM

Colin, thanks for the post. If the recording isn’t a court record, then I’m curious as to why the trial court has any jurisdiction over the recording at all. The State took the position during oral argument that, for a closed case, the proper course for such action (if the court reporter failed to provide access to copy the recording) would be a writ of mandamus against the court reporter who made/possesses the recording. I didn’t see anything in the court’s opinion that would prevent Undisclosed from pursuing such an action after finding that recordings are not court records. Am I missing something?

Posted by: FormerAgent | Nov 3, 2017 4:04:06 PM

Hi Colin:
Regarding the recording the court reporter took that you could not get access to through the court, there is a possibility you can get the recording from the court reporter her- or himself (or the videographer), probably for a fee. Some instances they are not always government employees. If you can find the reporter or appropriate person, that person may be able to help depending on that state's court reporting laws.

I was a production manager for a court reporting firm as well as a legal transcriptionist and scopist, and I know it has been done in the past, although I can almost guarantee the circumstances weren't the same.

I'm no attorney though, so I'd love to hear your thoughts on that.

Best of luck.

Posted by: Shery | Nov 13, 2017 2:28:47 PM

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