Most of you who have stepped into an American courtroom have seen a man or a woman sitting in front of a small, special machine no larger than a laptop typing silently whenever anyone spoke. Anything you say will be taken down. And, when you read the resulting transcript, you will see that everything was taken down, including a lawyer’s “uhs” and “ohs.”
These people are court REPORTERS, specially trained individuals that not only have a rudimentary background in the law, but also know how to type everything they hear using a kind of shorthand which is later translated into “normal” English.
What’s the importance of a court reporter in a criminal trial? Well, just about everything. The super majority of trials are not videotaped or recorded with a machine. The court reporter, then, is the record keeper of the trial who records everything in real time. And the record of a criminal trial is one of the things that protects the rights of a defendant — often times more than a defense attorney.
Since just about everything is recorded on paper by the court reporter, a reviewing court on appeal can see where there were errors and whether those errors justify a new trial. In the United States, speak with most criminal attorneys and one thing they invariably point to is preserving something on the record. If it’s not on the record, well, it didn’t happen. (Often times if the record is lost, a defendant is entitled to a new trial). And the record is what the court reporter puts on paper.
Now you would expect that UNMIK would have hired court reporters for the criminal trials. They would have seen the severe importance of having court reporters. After all, reporters would be able to record everything in real time and an appropriate record would be preserved for the defendant. Further, it’s not like UNMIK is trying the majority of defendants for petty theft. There are serious crimes being tried like war crimes and murder that all come with it serious time. But look at most transcripts and you will find them shoddy, at best. It really is embarrassing.
Who did UNMIK hire? Court RECORDERS. Now what are court RECORDERS? Court recorders do not use special equipment. Court recorders use normal laptops or computers and attempt to type the majority of what is said. Put another way, court recorders are merely fast typists, but they are not court reporters by any stretch of the imagination.
If anyone went to the Kurti trial earlier this month, one thing you noticed was how often the court recorder “recorded” (i.e. typed) something wrong or how often the court recorder asked the judge or the prosecutor to repeat something. It was ridiculous.
I have been able to see minutes of other trials and you will notice that what was said and what was “recorded” by the court recorder was really nothing like what had happened. That’s what happens when you have a court recorder vs. a court reporter. The difference is huge. And that has significant implications for protecting a defendant’s rights.
Part of the whole court recorder mess also has to do with the law itself. There are provisions in the PCPCK that require only that the “essential” testimony of a witness be recorded. That’s the loophole that I guess UNMIK has exploited by not hiring highly trained court reporters.
The problem is this: what the hell is “essential”? Who makes that determination? Often times, you don’t know what “essential” is until after the trial.
I have also been to a case where a local judge heard the witness testify and then told the court reporter what the substance of his testimony was to put into the record. Ridiculous. But it happens all the time. Look at the record of the famous war crimes case of Latif Gashi several years back. Same thing.
There are many weak links in the Kosovo justice system and, indeed, court recorders are one of those. I ask that Amnesty International and OSCE do more to demand that UNMIK hire court reporters and not court recorders.