Thursday, August 5, 2010

Attorney General Opinion Validates Surovell Legislation

Improving the use of technology in government to improve the delivery of services to citizens is one of my fundamental guiding principles.

I've been practicing law in Virginia for about 14 years. The District of Columbia has been recording all court proceedings for as long as I have been practicing. In the U.S. Magistrate's Courtrooms in Alexandria, they have been digitally recording proceedings for as long as I can remember. You can get a CD of any proceeding for $25.

In Virginia, nothing is recorded. If one of my clients wants to record a court proceeding, they have to pay a court reporter $175 per half day or $350 for a full day. This is not always a very economic decision depending on the size of the case. For example, if a client is charged with Reckless Driving, a court reporter is a signifiant expense compared to the attorney's fees, but if you want to fight it, you should really have a court reporter.

During the session, I introduced HB 827 to modernize the Virginia Court System and authorize Clerks of Court to install electronic recording systems in every courtroom and charge for recordings.

From my point of view, recorded proceedings improve the quality of jurisprudence in Virginia:
  • Recorded proceedings ensure honesty because all testimony is recorded;
  • If an issue arises in a trial about someone's testimony, the parties and the court can go back to the recording to confirm the statement, avoiding mistakes, motions to reconsider, and extra legal expense and unnecessary time used in the courtroom;
  • It provides better access to the litigants, the public and the press for court proceedings;
  • It ensures a record for appeal or subsequent proceedings.

I cannot tell you how many times I would have liked to have a record but did not have one because my client would not pay for a court reporter. It is very difficult to confront a witness with a prior inconsistent court statement without a transcript.

Prosecutors and public defenders could use recordings in criminal proceedings for subsequent hearings. Right now, prosecutors can rarely order transcripts because of budget limitations. With digital records, they could listen, find the portion they want transcribed, and pay to only have a few minutes typed up.

My legislation was supported by Fairfax County Clerk of Court, John Frey. He and other clerks were hesitant to proceed with installing systems without clear legal authority. It was opposed by the Supreme Court of Virginia who was uncomfortable about all proceedings being recorded and had concerns about confidentiality in juvenile cases. Given that the federal courts handle national security matters and do not seem to have a problem with confidentiality, I did not see the problem. The legislation was rejected on a party-line vote in the House Courts Civil Subcommittee.

Last month, I submitted a request to Attorney General Ken Cuccinelli that I have posted below. He basically says that my legislation is unnecessary because Clerks already have the authority to proceed and charge for the recordings. Therefore, Clerks who choose to do so can install these systems. I believe the only thing holding this back will be the money to pay for the equipment on the front end.

Technology can make our lives more efficient and improve the quality of our government. This is an important step forward to modernize Virginia's judiciary.

AG Opinion Court Recording Systems

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