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Court says trial audio is off-limits

Transcript is official, it tells a filmmaker

The state’s highest court has ruled that a documentary filmmaker is not entitled under the First Amendment to an unofficial backup recording of a trial made by a court reporter.

The court said that a transcript of the trial provided to producer Steve Audette was the official record of the trial and that it satisfied the public’s constitutional right to access to criminal proceedings.

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“Where an official record of the proceeding [the transcript] is available to the public, a presumption of public access to an unofficial record is more likely to generate public confusion than to aid public understanding,” Justice Ralph Gants wrote in a 19-page unanimous opinion.

“The appropriate vehicle for the public to monitor court proceedings is the official record, not a backup room recording that is used to assist in ensuring the accuracy of the official record,” the court wrote.

The court explained that there are two types of court ­reporters: stenographers, who later use their stenographic notes to prepare transcripts, and “voice writers,” who dictate proceedings into a tape recorder while using a mask to muffle their voices, then use the ­recordings to prepare transcripts.

In the 2007 trial of Keith Winfield on rape and other charges that Audette was focusing on, the court reporter was a voice writer.

The court reporter made a room recording, apparently as a backup to ensure accuracy, the court said.

The court noted that, ­despite its ruling, members of the public could still ask for ­unofficial recordings.

But it said that, in such instances, the burden would not be on the opponent to show good cause for impounding the recording; it would be on the proponent to show why justice would be served by making the recording available.

The court also noted that in Superior Court trials or hearings, when a court reporter is not available, a recording is made and, in the absence of a transcript, that tape is the ­official record of the proceeding.

Martin Finucane can be reached at mfinucane@globe.com.
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