With news that jury trials are being delayed once again due to the Covid-19 pandemic, it is useful to resurrect some early court technology used by the Erie County Common Pleas Court, General Division in Sandusky, Ohio from the '70s and later.
The following is a report that my NCSC colleagues, Peggy A.
Walsh and Kevin P. Kilpatrick, Staff Associate published as part of the Court Technology Reports, 1990 publication available in PDF in our Library eCollection here.
If you read this article, please remember that this was done
in the time of analog (meaning tape) recording media and way before the internet
was generally available to the public and the courts. It is much easier to
accomplish this in 2022 and therefore the core concepts are worth considering and updating as another
potential tool for court trials.
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In summary, the authors identified the following
benefits:
- Once taped, both parties are aware of all facts in the pending litigation.
- Prerecording often leads to out-of-court settlements before live trial date is set.
- Because all videotaping must be completed by a specified date, with taping dates
- agreed upon by counsel, continuances can be reduced.
- Live trials using videotaped material exclusively are shorter and incur less jury cost.
- Juries do not hear potentially damaging material during the course of examination by
- counsel.
For many civil cases in Erie County Common Pleas Court,
General Division, testimony is given before the video camera rather than in
front of a jury. According to the judge, the Prerecorded Videotaped Trial
(PRVTT) system permits more effective use of his or her time, reduces the number
of jury trials, and speeds up those cases that have been recorded and are still
heard by a jury. The court often schedules two cases concurrently, one using
the PRVTT system before a jury and a second presided over by the judge. The
PRVTT system is not complex and does not require any specialized equipment that
could not be purchased in most electronics stores. Further, the videotape, once
recorded, becomes the official court record after review by the common pleas court
judge.
The PRVTT system permits testimony to be recorded on
videotape and subsequently played back before a jury. The most significant
feature of this system is that it requires no further testimony or presentation
of evidence during the trial. The jury sees only the videotapes; any recorded objections
are manually suppressed during playback by the court representative. The
original file tapes are not edited.
Erie County Common Pleas Court routinely assigns factually
simple civil cases, irrespective of the dollar amount involved, to the PRVTT
calendar for the taping of evidence and testimony. Once this phase has been
completed, the case is set for trial, and a jury will watch the videotapes.
While this takes place the judge can preside over other trials in other
courtrooms. This allows many of the less complex cases to be disposed of faster
than more complicated civil disputes.
Judge James L. McCrystal initiated the use of prerecorded
videotape trials in Erie County in 1971. In 1976 Judge McCrystal was assigned
to assist in the handling of a large number of eminent domain cases backlogged
in another Ohio metropolitan county. Of the approximately 90 pending cases, 75
percent were terminated by settlement or trial in less than a year. Judge
McCrystal presided over 27 cases in 21 days using two courtrooms. He also
edited a number of videotapes in Erie County, and a local judge in the other
county presided over the trials.
Acknowledgments
NCSC staff visited the Erie County Common Pleas Court,
General Division, in Sandusky, Ohio, and received a complete demonstration of
the system from initial videotaping to final playback of prerecorded tapes. The
following people contributed to this review: Hon. Ann B. Maschari, Judge, Erie
County Common Pleas Court Hon. James L. McCrystal, Judge (retired), Erie County
Common Pleas Court Mr. Robert Windau, Video Technician, Erie County Bar
Association Ms. Barbara Johnson, Clerk, Erie County Common Pleas Court Ms.
Anita Claubaugh, Deputy Clerk,
Erie County Common Pleas Court Ohio Common Pleas Court
The common pleas court is Ohio's court of general jurisdiction,
serving 88 counties with 339 judges. It exercises jurisdiction in torts,
contracts, real property rights, appeals of administrative agency cases,
traffic cases (juvenile cases only), and miscellaneous civil matters and has
exclusive jurisdiction in domestic relations, mental health, estate
jurisdiction, triable felony, miscellaneous criminal, and juvenile matters.
Ohio Common Pleas Court judges are selected and retained by nonpartisan
election for six-year terms, and their salaries are funded through joint state
and local sources. Erie County Common Pleas Court, General Division, Sandusky,
Ohio
The Erie County Common Pleas Court, General Division,
located in northwest Ohio, serves a population of approximately 100,000. This division
has one full-time judge, one retired part-time judge, and one law clerk. Over
800 cases are filed annually in the general division with at least an equal
number terminated. A significant portion of these cases involves minor
automobile accidents or simple personal injury actions.
Erie County is ranked thirty-second in population of the 88
counties in the state. In 1989 Erie County ranged eighth in filings, fourth in
terminations, and first in jury trials per judge. In 1989 approximately
one-third of civil cases filed were disposed of via audio/video technology.
Cases filed in 1989 - Civil: 523 Criminal: 287
General System Overview
For a number of years, various courts across the country have
used videotaped evidence and disposition. Only in Ohio, however, can a trial court
require that videotape be used in civil proceedings. This technology offers a
variety of benefits to the court and to litigants in moving routine civil
actions through the judicial process by providing justice that is accessible,
fair, and quick. Further, the system uses judges' time more efficiently. A
judge can begin a videotaped trial in one courtroom and preside over a live or
videotaped trial in another courtroom.
Approximately one-third of all civil filings in the Erie
County Common Pleas Court are assigned to the videotape trial docket. These
cases are typically disposed 10 to 12 months earlier than cases tried in the
traditional manner. Although PRVTT is not appropriate for all trials, the technique accommodates most civil cases in which claims are under $100,000 and are
handled by two attorneys and present a maximum of six witnesses.
The Erie County courthouse has four courtrooms, each
equipped with a multi-track audio-recording system. The common pleas court, general
division, uses two courtrooms, either of which may be used to prerecord
evidence for the PRVTT system.
A Prerecorded Videotaped Trial involves several steps. If,
after the initial filing and subsequent review by the common pleas judge, a civil
case meets the requirements of PRVTT, the action is placed on a separate
videotape trial docket maintained by the judge's staff. The court then advises
the parties that the case will be video-taped. Taping must be completed by a
specific date —usually within six months. The respective attorneys decide among
themselves when and where videotaping will take place. These dates are not set
on the court calendar, though a courtroom may be used for videotaping. A
technician, who must also be a notary public, operates the equipment.
Witnesses are examined and cross-examined by counsel while
being recorded on videotape. If there are objections by either counsel as to
the relevance or materiality of a question or the qualification of the witness
to answer during this taping session, the video technician annotates the required
log sheet at the point where the objection took place on the tape (usually
logged as a point in time —for example, 1:20:15). In Ohio lawyers can object
only after the witness has answered, a practice that eliminates many objections
and promotes an organized means of editing. The judge rules on those points
during his or her review of the videotapes. If in the judge's opinion, either
one or both attorneys failed to properly execute their objections according to
local rule, the judge may require the testimony to be rerecorded and objections
handled in the proper manner on the tape. Counsel may request a copy of the
tape and edited log sheets to learn how the judge ruled on the objections.
At the conclusion of the recording session, the tape is
immediately played back for the witness unless the party has waived this right
under the Ohio Rules of Superintendence. No witness has yet requested a
complete playback of the recorded tape in Erie County.
Rules 10 and 12 of the Ohio Rules of Superintendence govern
the mechanics of PRVTT Specifically, Rule 12 requires that a date and time generator
be used to superimpose the year, month, day, hour, minute, and second onto the
tape at all times. A safeguard against tampering, this also makes editing more
efficient and enables the operator to note objections or comments on the required
log sheet.
If the case is not settled when taping is complete, a trial
date is set and a jury impaneled. At this point, the PRVTT case joins the
primary court docket system. The judge advises the jurors that they will be
reviewing prerecorded videotape in lieu of a live trial and that the judge will
not be in the courtroom during the playback of the tape(s) but that a court
official will be present. The court official monitors the playback, suppressing
both video and audio portions as required on the tape log sheets. The Rules of
Superintendence of the State of Ohio prohibit the deletion of any testimony
from the tape; therefore, the court official playing the tape is responsible
for ensuring that the marked information is bypassed. At the end of the jury
review, the judge may either personally provide jury instructions or, with
prior knowledge of both counsel, have the court official play a prerecorded
jury instruction tape.
Recording Costs
The average hourly cost for recording video- tape testimony
ranges from $20 to $40. Recording costs are greater if a commercial firm is
used. These firms often require that a typed transcript be purchased in
addition to recording time and the videotape material. In Erie County, where
the local bar association and four law firms have their own equipment, only
necessary expenses are incurred. Videotape costs vary with each case. If there
is an appeal, which is extremely rare when cases are processed through the
PRVTT, the videotape is the official court record, and it need not be further
transcribed before the appeal is filed. An appellate court may, however,
require a typed transcript.
Court Costs
PRVTT can eliminate or significantly reduce many of the
court costs associated with a live trial. Costs resulting from unexpected
continuances or courtroom unavailability are eliminated as it is the responsibility
of counsel to arrange for recording sessions before setting a live trial date.
These delays are wholly incurred by the respective law firms and not the court.
Many PRVTT trials are settled before trial; if tried, they take far less courtroom
time, and annual jury costs are reduced. (Note: Erie County has not tracked
actual jury cost differences between PRVTT and non- PRVTT cases; however,
according to Judge Maschari, the presentation of evidence in a PRVTT trial
lasts on an average of a day and a half, whereas the presentation of evidence
in a non- PRVTT civil case lasts an average of almost two and a half days. This
could be due to the types of cases assigned to the PRVTT calendar.)
Equipment Costs
PRVTT requires a color camera, a video recorder and playback
unit, date/ time generator, audio mixer, and a color TV monitor. This basic equipment
represents an investment of approximately $7,500 according to Mr. Robert
Windau, an audio technician for the Erie County Bar Association.
Ohio Superintendence Rule 12 requires that courts furnish
videotape playback equipment —a cost of less than $1,700. According to Judge McCrystal,
this cost could be recouped within a year by many midsized Ohio courts in jury savings
alone.
Allocation of Costs
Ohio Superintendence Rule 15, Section F, describes how the
costs are allocated:
(F) Costs.
1. Depositions.
(a) The cost of videotape, as a material, shall be borne by the proponent.
(b) The reasonable costs of recording the testimony on the videotape shall be treated as costs in action.
(c) The cost of playing the videotape recording to the jury in the course of the trial shall be treated as a general cost of the operation of the trial court.
(d) The cost of an audio reproduction of the videotape recording sound track used by the trial court in ruling on objections shall be treated as costs in the action.
(e) The cost of playing the videotape recording for the purpose of ruling upon objections shall be treated as costs in the action.
The Erie County court equipment is available to local
attorneys. Four local law firms also have their own video-recording equipment and
do their own taping. One of these firms recently completed a videotape studio
with sophisticated screen-mixing capabilities. This technique allows both the
speaker (witness) and inanimate objects, such as photos, records, or books, to
be recorded by individual cameras on the same videotape.
Erie County is experimenting with another aspect of this
technology: the development of computer-generated graphics for accident scenes,
which are then electronically videotaped directly to a VHS cassette. Although this
requires additional, and often expensive, equipment, it opens up a new realm of
possibilities for portraying historical events before a jury.
Effect of Technology on Users
Ohio Civil Rule 40, implemented by the Rules of Superintendence,
dictates how to videotape testimony is to be recorded, filed, edited, and played back
to the jury. Erie County Common Pleas Court issued its own rules to further
govern this technology. A major portion of these rules ad- dresses the handling
of objections on the videotape and by the reviewing judge.
The duties of the staff of the Erie County Common Pleas
Court have not considerably changed. The Erie County Bar purchased most of the
equipment used in the smaller courtroom and also supports the salary of the
audio/ video technician. The attorneys are required to manage their own taping
calendars; many times, cases are not set on the court calendar until after
taping has been completed. While the court has acquired some equipment, its
overall capital investment is less than that of the Erie County Bar.
Once a case has been filed, the judge reviews the complaint
to decide if the case merits PRVTT. Attorneys may request reconsideration of
the assignment, but the decision is rarely changed. On the other hand, in the
cases assigned to the PRVTT docket, 25 percent are requested by the attorneys
of one or both parties.
When prerecorded VHS tapes have been submitted to the court,
the judge reviews only the portions of the tape where objections occur (editor's note: underlined for emphasis). For example,
on a 60-minute videotape with three objections, the reviewing judge looks at
one to two minutes of tape leading up to the objection, the objection itself,
and a few minutes following the objection before making a ruling. Usually, a
judge can handle the editing process alone. Typically, a judge can review all
the objections and make the rulings within an hour, even though several hours of
total videotape time may be involved.
Videotaped trials have an immediate effect on attorneys. To
compete with opposing counsel who has videotaping experience and equipment, attorneys
need to invest time and resources in this technology. Further, where
depositions were once taken at the attorney's office, they may now be taken at
the incident site. According to one senior partner, his firm feels strongly
about the use of videotape and its potential to substantially support the
client's position in a suit.
Many attorneys, concerned that videotaping is less effective
than presentations before a judge and jury, prefer live trials. Some plaintiffs
want their "day in court," despite PRVTT. In spite of these opinions,
Erie County attorneys have adjusted to PRVTT, and many now have their own
videotape equipment.
In 1973 the Law and Justice Center of the Battelle Memorial
Institute, University of Washington, surveyed over 500 jurors who had decided PRVTT
cases. According to the survey results, over 60 percent of the jurors preferred
a prerecorded trial over a live trial. A second four-year study by the
department of communications at Michigan State University, published in 1979, showed
the use of videotape in lieu of live trials did not significantly affect juror
judgment of testimony or their verdicts.
A 1978 study on the effects of videotaped testimony on juror
behavior by Barbara Lane Hart concluded "that varying the means of
testimony presentation had no significant effect upon a juror's verdict, his
retention of trial-related information, his evaluation of trial participants,
or his evaluation of the trial." Research completed by Gerald R. Miller
and Norman E. Fontes in 1979 similarly found that studies "fail to
indicate that the use of videotaped trial materials produces any deleterious
effects on juror response."
Though no dedicated studies have been completed on the
topic, there is potential for savings in juror costs. Since 1974, according to Judge
McCrystal, of approximately 1,700 civil cases that were prerecorded, at least
250 were heard by juries and at least 50 percent were terminated less than a
year from filing.
For many litigants, PRVTT usually means speedier civil
justice. Typically, completion of a PRVTT case requires less than one full
year. According to Judge Maschari, these same cases would traditionally require
more than 18 months and, in a few circumstances, more than two years. Further,
taping of testimony permits out-of-town litigants to meet schedules that are
more suitable to their needs, rather than to the needs of the court. Finally,
for many individuals, the possibility of sitting before a jury can be
intimidating. Often they are more relaxed sitting in a courtroom before a video
camera without the judge and jury.
According to Judge Maschari, the single most important
effect of PRVTT is the capability for the judge to manage two or more trials
concurrently. The judge can begin a PRVTT trial in one courtroom and cross
the hall to preside over another live or PRVTT trial in another courtroom. More
civil cases can be terminated than would otherwise be possible given the
limitations of a single judge. Further, it significantly lessens the amount of
judicial time required to hear and decide the more simple civil matters.
PRVTT has had little effect on Erie County clerks. The
clerk's office does not manage the courtroom calendar or become involved with
the PRVTT system or its docket. PRVTT equipment is managed by the judge's
office, the court reporters employed by the court, or by the technician employed
by the local bar.
All court reporting is done electronically in Erie County
either by multi-track audio systems or by videotape. The court reporter
operates both types of equipment, depending on the particular trial being held.
In all PRVTT cases heard before a jury, the videotape is the official court
transcript and is not required to be transcribed to text.
PRVTT is not consistently used in other Ohio courts. This
technology has apparently been reviewed or tested in several other states,
including Texas and California. Many states permit videotaped testimony in lieu
of a live witness during a jury trial.
The largest single obstacle to the broader use of PRVTT appears
to be local attorneys, who make three major arguments against it. According to Judge
McCrystal, many attorneys are of the opinion that their presence in a courtroom
cross-examining a witness bears heavily on how jurors will decide a case.
There appears thus far to be little evidence to substantiate this, and in fact,
the previously mentioned studies have shown that jurors are not greatly
affected by the live actions of attorneys.
Attorneys argue that because a judge is not present during
the playback of the videotape, it is not a "real" trial. Erie County
judges respond that their presence is not required because objections are
suppressed during playback before the jury and no further objections will be
heard. Previous studies indicate that jurors do not feel a lack of decorum with
the absence of the judge.
A final argument concerns witness reaction during a live
trial compared to their reaction during videotaped questioning. During a roundtable
discussion, one local attorney argued that it was preferable to see the witness
"squirm" before a jury. The same attorney felt that better testimony
was obtained, especially if the witness was for the opposition. Although this
would seem to have merit, there appears to be little evidence that this
actually has any influence in the more simple civil matters settled via PRVTT.
PRVTT has limitations. The consensus of four Erie County
attorneys is that the system could not be used for criminal proceedings,
although Erie County has used the procedure in several criminal trials. (As
long as the defendant is present when the videotaped testimony is recorded and
played back, there appear to be no constitutional impediments.) Further, PRVTT
is not practical in cases involving two or three parties or multiple issues. All
agreed, however, that PRVTT did provide two significant advantages for the
local bar. According to one attorney, he had not had a single live trial for
cases within PRVTT. The capability of a judge to preside over two trials
permitted speedier resolution of all cases. All four attorneys ultimately felt
that justice was primarily for the litigants and not for the attorneys. Any
process that would speed justice for their clients should be thoroughly
examined and, if appropriate, implemented. The attorneys interviewed feel PRVTT
is in Erie County to stay, and they support the process.
Editor’s note:(out of date contact information ends the article)
Article footnote 1. G. Miller and N. Fontes, Real versus Reel: What's the Verdict? The Effects of Videotaped Court Materials on Juror Responses (E. Lansing, Mich.: Michigan State University Department of Communications, 1979). This article is currently available online at: https://www.ojp.gov/pdffiles1/Digitization/68340NCJRS.pdf
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