Contemporaneous Recordings for Referee Hearings in Michigan

I am not a lawyer and this is not legal advise.

Michigan Court Rule 3.215 says in part:

(4) An electronic or stenographic record must be kept of all hearings.

(a) The parties must be allowed to make contemporaneous copies of the record if
the referee's recording equipment can make multiple copies simultaneously and if
the parties supply the recording media. A recording made under this rule may be
used solely to assist the parties during the proceeding recorded or, at the
discretion of the trial judge, in any judicial hearing following an objection to
the referee's recommended order; it may not be used publicly.
Why is this important?

Having a contemporaneous copy of a hearing that you take possession of at the end
of the hearing is a signal to any unethical player in the court who might seek to
influence the activities of a court transcriptionist that you have the power to
"out" them.

That is, you have an actual copy of what was actually said. If the referee says
"I think that kids belong with their moms", well, that referee may not want that
statement on the official court transcript.

So if this were me, I would request a transcript to be used in a de novo hearing

to toss the recommendation of the referee in its entirety and disqualify the
referee from further proceedings on the grounds that the referee is sexist and
unable to fulfill his/her duties under the law.

So an underhanded court clerk, having received your order for a transcript, would
illicitly notify the referee, who sits down with the court recorder and carefully
reviews the hearing for statements that might be used against his/her ruling in
court.

And he/she hears "I think that kids belong with their moms" and red flags go off.
He/she could be fired if he/she is found to be blatantly biased on the record.
How could he/she EVER make another recommendation like this, particularly if it
were made public?

So the referee works with the recorder to edit those statements, or "loose" the
recording in its entirety. Perhaps the court recorder does this because he/she is
also biased, and believes that it's OK to break the law "for the kids". Perhaps
there's a bribe involved. As an outsider, you would never know.

Perhaps the court recorder says "No way. I'm not getting fired over this." Smart
move. AFAIK, court recorders have no immunity for intentional torts.

So the referee goes to the court reporter, who is going to listen to the recording
and make a transcript. He/she asks the court reporter, "Can you accidentally
forget to type that statement?". Again, this might involve a bribe.

So you get the transcript, and lo and behold, the statement for which you're
looking isn't in there. The referee's recommendation is upheld. The judge tells
you that it's impossible when you claim that you heard the referee say that
children belong with their mothers.

So, without a contemporaneous recording, the referee may find the court recorder
and say "can you delete that segment?" The court recorder ALREADY HANDED YOU A
COPY. You can produce that copy, and compare it to the court recorder's copy, and
show that the court recorder falsified it. You can sue the court recorder for the
intentional tort of altering the recording. He/she could go to jail. So he/she
says "No way".

So the referee goes to the court reporter. "Can you accidentally forget to type
that statement?" Perhaps the recorder says OK. Perhaps there is a bribe. With
the right judge, who refuses to listen to your contemporaneous copy of the
recording, and treats the transcript as valid, then this might work once or twice,
but once a pattern of this behavior emerges, then it won't.

Or perhaps you say "screw it" and go to the press showing how the transcript was
altered, causing a political mess, then there is no hope. Who cares? They're
taking your baby. Hold you in contempt! The judge could be impeached or loose
reelection after a scandal like that.

Having a contemporaneous copy IN HAND at the very end of the hearing is an

assurance that you have the power to prove that officials of the court have
illicitly altered the transcript that's used in court and is supposed to reflect
that recording.

What if the court says that it can't allow me to get a contemporaneous recording?

“Only certified reporters and recorders may record or prepare transcripts of

proceedings held in Michigan courts or of depositions taken in Michigan as
regulated by Michigan Court Rule 8.108(G). Certification is accomplished through a
testing process administered by the Court Reporting and Recording Board of Review
through the assistance of the State Court Administrative Office.”

http://courts.michigan.gov/scao/services/crr/crr.htm

Since my initial request for contemporaneous recording would be in writing, if

possible, I would expect a written response. Anyone indicating that
contemporaneous recording isn't available would then be on record.

I would then ask for the name of the court recorder and the type of equipment that
is in use. If they're lying, they'll avoid giving it to me, so I would make a
written request via certified, return receipt mail. I would send a second letter,
certified, return receipt, addressed to “Court Recorder” at the address of the
court, and request an immediate written reply.

When attending my referee hearing, I would note the type of recorder if visible,
as well as object to the fact that I was told that the court recorder was unable
to do his/her job, was not given the name of the recorder or the model number of
the equipment. I would also ask at the hearing for that information and request
that the referee verify that both the recorder and the equipment are certified by
the Court Reporting and Recording Board of Review.

At this point I would consider making a written complaint:

“Complaints against court reporters and recorders should be made, in writing, to

the Court Reporting and Recording Board of Review at PO Box 30048, Lansing,
Michigan 48909. “

http://courts.michigan.gov/scao/services/crr/crr.htm

Also, an e-mail message may get a faster result: CtRec-Info@courts.mi.gov.

I would include all relevant information, including names of the court recorder,
equipment type, people to whom I spoke, what they said, etc.

Please note that some people have indicated that some referees have a “pedal” or
other mechanism so that they can say things off the record to the parties during
the hearing. All parts of the hearing must be recorded.

Some equipment may allow for the referee or judge to disable recording for “bench”
or “sidebar”

“13. Bench and Sidebar Conferences

If a conference is off-the-record, the operator should make certain to record the
judge
announcing that it is off-the-record. The judge is the only person who can order
an offthe-
record discussion. The recording equipment should then be turned off. Note the
counter number where the recording was interrupted, and indicate next to the
counter
number that an off-the-record conference occurred at that point and the time it
occurred.
When the conference is over, the recording equipment should be turned on, the time
noted, and logging resumed.”

Section 4: Reporting/Recording the Proceedings and Depositions

http://courts.michigan.gov/scao/resources/publications/manuals/crr/crr_sec4.pdf

If either party is representing themselves, then I don't personally see how there
can be any sidebar conferences should be on the tape.

Any gaps in the tape when it is contemporaneously may indicate that the referee
knowingly made a statement within the hearing that he or she did not want on the
recording or in the transcript. I might try to record an admission that the
referee made such a statement later in the form of a question.

For example.

Referee: “I'm not going to rule in favor of you no matter how much evidence you
present”.

This is something that I might think the referee might intentionally try to avoid
having on the recording using his/her ability to stop the recording if any.

At this point, I would nod and note what he/she said.

One minute later, when I'm sure that the recording is enabled, I would work it
into normal statements.

Me: “As you can see, my income for ... Didn't you just say one minute ago that you
are not going to rule in favor of me no matter how much evidence I present?”

At this point, if the referee knows that he/she edited the recording, he/she may
try to deny it, because my question is on the record.

Referee: “I'll not have you make spurious accusations!”

Me: “I'm sure you said it. Did you disable the recording equipment?”
A smart referee would say “This hearing is not about me.” A less smart one might
say “No” when in fact he / she had.

If the tape is time and date coded, the times and dates when it was disabled will
be visible.

If not, then stops and starts will be apparent, and an expert audio engineer can
testify to their presence and location on the recording, if not their duration.

It may be a crime for a referee to intentionally edit a recording. Repeated

behavior, documented in multiple cases, may be sufficient to convict him/her.

It's interesting to note that human court recorders are supposed to make careful,
time coded, log entries for proceedings they record. I suspect that in most
cases, referee proceedings are simply mechanically recorded.

Some jurisdictions reportedly don't time and date code referee hearings. I would
request that my contemporaneous copy include time and date codes to ensure the
completeness of the hearing. It's not clear that this can be enforced, but I
might complain if the court recorder claims that he/she can't make a recording
with time and date codes, especially if they're available for other civil and
criminal hearings.