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.

“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.

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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