by James Kelly 6-3-23 (NY)
I asked earlier today in Questions Presented if there was a due process right to an accurate transcript because Judge Gliedman cited “There is no constitutional right to videotape or audiotape court proceedings, and there is an absolute prohibition against recording some court proceedings.” CC v. DD, 64 Misc.3d 828 at 845 (NY County Supreme Ct, 2019).
Here is my answer that affirms my “Yes.”
There is a substantive due process right to a substantially accurate court transcript:
“It is well-settled that a criminal defendant’s right to a trial transcript is of constitutional dimension. See Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). A defendant has a due process right, ipso facto, to a substantially accurate record of sentencing proceedings. See Curro v. Watson, 884 F.Supp. 708, 719 (E.D.N.Y. 1995) (“Because effective appellate review would be substantially hampered if the trial transcript were materially in error, it stands to reason, therefore, that this substantive due process right would be meaningless unless it also embraced the right to a reasonably accurate transcript….”).” Argentieri v. Majerowicz, 158 F. App’x 306 (U.S. Ct. App. 2nd Cir. 2005)
“Because effective appellate review would be substantially hampered if the trial transcript were materially in error, it stands to reason, therefore, that this substantive due process right would be meaningless unless it also embraced the right to a reasonably accurate transcript that, among other things, preserves the criminal defendant’s objections for purposes of appeal, and readily lends itself to a just resolution of any material inaccuracies in said transcript through a transcript settlement procedure.” Curro v. Watson, 884 F. Supp. 708 (E.D.N.Y. 1995).
However, and despite the verbatim requirements upon court reporters, there is no case law to support a substantive due process right to a verbatim official court transcript.
With respect to the absolute right to procedural due process:
“Consistently with procedural due process, the State Supreme Court’s affirmance of petitioner’s conviction upon a seriously disputed record, whose accuracy petitioner had no voice in determining, cannot be allowed to stand. Pp. 164-165.” Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957)
“Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957), is perhaps the most interesting precedent of all. There, the reporter at the state court trial had died after transcribing a small portion of the trial and there was great difficulty in reading his notes. The state court undertook a procedure for the creation by others of a purported transcript. The defendant was not represented during that procedure and challenged the accuracy of the purported transcript. After exhausting his state remedies, he applied to the federal court for a writ of habeas corpus. The Supreme Court held that the state court procedure in creating the purported transcript lacked the requirements of due process and remanded the case to the District Court with instructions to enter an order as prescribed by the Supreme Court in its opinion. The prescribed order permitted the state courts a reasonable time within which to comply with constitutional requirements in connection with the transcript, and, failing such action, ordered that the petitioner be discharged. 354 U.S. at 166, 77 S.Ct. 1127. … procedural due process would of course require that the transcript be accurate and that defendant participate in person or by counsel at hearings to reconstruct the record of his trial.” Hart v. Eyman, 458 F.2d 334 (9th Cir. 1972).
“Generally, a deprivation of liberty or property is not cognizable under 42 U.S.C. § 1983 when state post-deprivation remedies are adequate to protect the plaintiff’s procedural due process rights, and the conduct causing the deprivation is random and unauthorized, rather than effected pursuant to an established state procedure. … Accordingly, if the State is able, through adequate state post-deprivation remedies, to compensate the plaintiff for unauthorized intentional deprivations, or otherwise to resolve the issues presented, the State has provided all the process that is due for purposes of § 1983. See, e.g., Katz v. Klehammer, 902 F.2d 204, 206-07 (2d Cir. 1990) … The State of New York provides postdeprivation remedies that are adequate to cure errors or omissions in a transcript of a criminal defendant’s trial. Specifically, section 5525(c) of the New York Civil Practice Law Rules, and section 460.70(1) of the New York Criminal Procedure Law, provide mechanisms for challenging inaccuracies in a transcript through a transcript settlement hearing, which, whenever possible, is to be presided by the same judge who presided at the trial in question. See Cousart v. Hammock, 745 F.2d 776, 778 (2d Cir. 1984); N.Y.Civ.Prac.L. R. § 5525(c); N.Y.Crim.Proc. Law § 460.70(1). Further, New York law firmly rests ultimate responsibility for the integrity and accuracy of the record and transcript of the judicial proceeding upon the trial judge. See N.Y.Jud. Law § 7-a; People v. Roldan, 96 A.D.2d 476, 465 N.Y.S.2d 35, 36 (App.Div. 1st Dep’t 1983). In addition, any significant unresolved questions concerning the transcript’s accuracy could be raised on appeal, and if found to be substantial, would permit a remand of the proceedings back to the original trial judge to resettle the transcript. See People v. Locke, 154 A.D.2d 622, 546 N.Y.S.2d 452, 453 (App.Div.2d Dep’t 1989); Roldan, 465 N.Y.S.2d at 36.” Curro v. Watson, 884 F. Supp. 708 (E.D.N.Y. 1995).
Procedural Unfairness
1) NYS CPLR § 5525 (c) fails to provide any meaningful procedure to settle the trial transcript prior to the deliberations of the trier of the facts.
2) Should judicial misconduct have occurred and been omitted from the official court transcript, and is challenged, the judge as the final arbiter of the transcript, has the opportunity to select the version of the transcript without the preservation of evidence of judicial misconduct as the official version.
3) There is no civil equivalent in the form of a reconstruction hearing that is available in criminal proceedings.
4) Arguments unpreserved in the certified record are not available for judicial review and for appellate decisions involving judicial misconduct the remand to the trial court for settlement is inherently unfair.
5) The statutory prohibition and judicial rules prohibiting the independent preservation of evidence of what transpires in the courtroom is unconstitutional prior restraint.
The prohibition against recording in court proceedings violates the confrontation clause of the Sixth Amendment because it is prior restraint against the settlement of the official record.
The court reporter is an expert witness, presenting an expert opinion of who said what in the proceedings, in the form of a certified official court transcript. They are not infallible.
Independent recordings render reconstruction hearings academic.
6) NYS CVR § 52 & 22 N.Y.C.R.R. § 29 both unfairly and unlawfully infringe upon the right to bare the defensive “arms” generally called recording devices which are protected by the Second Amendment.
