Revamping The Current Regime of Oral Evidence

REVAMPING THE CURRENT REGIME REVAMPING THE CURRENT REGIME OF ORAL EVIDENCE By Syed Haider Ali Shah, (Senior Civil Judge, Mehar) Mujahid Rahim, (Senior Civil Judge, Islamabad) Table of Contents I. INTRODUCTION 49 II. BREAKING OF SHACKLES . 50 III. INTERNATIONAL PERSPECTIVE ON RECORDING OF ORAL EVIDENCE 51 i. AUSTRALIA . 51 ii. UNITED KINGDOM . 52 iii. UNITED STATE OF AMERICA . 52 iv. MALAYSIA 53 v. SCOTLAND ... 53 vi. SINGAPORE . 53 IV. RECORDING MODELS . 54 i. DIGITAL AUDIO RECORDING MODEL .. 54 ii. VIDEO RECORDING MODEL . 54 V. TRANSCRIPTION MODELS .. 54 i. DIGITAL AUDIO RECORDING TRANSCRIPTION MODEL .. 54 ii. COMPUTER-ASSISTED TRANSCRIPTION MODEL 55 VI. HOW TO GO ABOUT IT . 55 VII. THE CONCLUSION .. 56 ABSTRACT Currently, in Pakistan, the testimonies in criminal and civil cases are transcribed by the judge or courtroom employees. This process of transcribing evidence is prone to errors and fails to provide the manner in which a witness narrates facts as well as the conduct of the advocates and of the judge during the trial. Moreover, the powerful human compulsion to interpret and understand, what they hear, in their own ways, leads to errors, which massively affect the outcomes. This paper will not only account for the difficulties of transcribing verbal communications but also the inability of written mediums to take down non-verbal communications. It will also underscore the need of using technology or the new models of court recording systems in the recording of oral evidence so as to enhance the quality of trials and decisions. It will also focus on how developed nations have revamped the recording of evidence in their trial courts by using mechanical and digital devices and preserving it in the on-premise archive. Keywords: oral evidence, transcribing, written medium, administration of justice, technology, mechanical device, transcript. I. INTRODUCTION In the existing regime of recording of oral evidence, a witness narrates the facts in the court, which are then transcribed on a paper or typed to a computer by the judge in real-time or sometimes, it is the court staff, who does the job. There are several types of issues that can arise when transcribing testimonies and confessions. At best, a transcript is a 2D manifestation of a 3D object. It is almost impossible to put all the nuances in written medium from the original speech act. How does one transcribe pauses, hesitations, smirks etc? How does one indicate tone of voice?1 The existing narrative form of recording oral evidence takes away the emotions, sentiment including excitement, delight, grief, anger etc. of a witness. It does not signify, if certain question infuriated or irritated a witness. It also misses the aspects of promptness and thoughtful processing of information, which could have significantly helped a judge to unearth the truth. It is commonplace for the lawyers to afford clues to the witness with one pretext or the other and the written medium is hardly effective to capture it. Even if the judge endeavors to record each and every emotion of a witness in the deposition, it is hardly possible due to various constraints including limited vocabulary, limited time, resistance from the counsels etc. The biggest challenge to the act of transcribing is the accuracy of the transcript itself and it is ironic that most of these mistakes go undetected resulting into faulty outcomes at court of first instance as well as at appellate stages. In 1988, a study was conducted by District Court of Arizona to compare transcripts prepared by court reporters with automatically recorded video testimonies and the study found nearly eight errors per single spaced page of transcripts. Among the errors were missing words, missing phrases, switching of words and major alteration of sense. This study also finds that court reporters/stenographers are human beings and human beings have a powerful compulsion to interpret and to understand what they hear in their own ways2. The complaints against judges and court staff for manipulations, may be sometimes false, in the testimonies are also not uncommon but there is no way to address these complaints. It is an entrenched practice that evidence is recorded in narrative form without the corresponding question. The disadvantage of the narrative form is its inability to catch the intention of an evading witness. Moreover, only those facts, which are allowed by the Judge to come on the record are transcribed and the ill motivated disturbances of the Prosecutor or defence counsel with objective to get the specific words uttered from a witness or putting certain words into the mouth of witness, or on many occasions a certain question is asked several times only to get a favourable answer, are diluted. The existence of non-verbal component in the communication poses another challenge for the written medium. Science and technology have widely confirmed the importance of the non-verbal components in communicative information but it cannot be fully transcribed in court room settings, which inevitably effect outcomes. Most courts in Pakistan either record evidence in English or translate in English from a local language. English, not being the mother language of the judges, always complicate things and as a result, major alteration of sense is not uncommon. Moreover, the Judges have divine duty at their hands of administering justice to the litigants coming before them, therefore, instead of getting stuck into the problem of translating local languages into English there should be a solution which should not only disburden judges from this somewhat unnecessary load but should also benefit to the system of administration of justice at large. II. BREAKING OF SHACKLES Justice Ruth Bader Ginsburg in his book 'My Own Words' bespeaks that for efficient administration of justice, we do not need more judges but efficient Judges and efficient process.3 In contrast to this, there was hardly any serious attempt in Pakistan to make court processes and systems efficient. The sorry state of affairs reflected from the fact that our trial courts are still entangled with the timeworn and outdated method of recording oral evidence in this technological-era. The trial Court, where whole trial is held, can form its opinion by going through the recorded facts and circumstances as well as by keeping in mind the conduct and demeanor of the witnesses at the trial but appellate Courts which do not have the luxury of witnessing the trial, have no other option but to base decision on the basis of recorded facts by the trial Court which in no way provide clear and truer picture of what happened at the trial that is why it is notoriously termed as 'Paper Justice'. Perhaps, this is the reason, the appellate Courts usually fail to capture the real spirit of the testimony of a particular witness and base their judgments on literal constructions. This prevailing practice of recording oral evidence needs complete revamp. There is a dire need of utilizing technology in order to preserve oral evidence through modern devices. In most of the developed countries trials are filmed and preserved through modern devices and the proceedings are also converted into transcripts which are then made part of the record. This not only provides an actual description of the trial in its true sense but also removes the accusation of manipulation. The appellate Courts are then able to have a true picture of the narrated facts, demeanors, conduct and attitude of the witnesses at the trial. Criminal Procedure Code4 does provide provision for recording demeanor of a witness but written description can never be the alternative of a picture/video as famously quoted by Fred R. Barnard that, "A picture is worth a thousand words".5 The written description of demeanor of a witness is recorded by the judge in his own limited vocabulary which is prone to mistakes but video of the demeanor or conduct of a witness will provide a truer picture which will be more understandable in order to get a true sense of a particular situation as visual review minimizes the error of context.6 The Criminal Procedure Code was enacted in 1898 and likewise Civil Procedure Code in 1908 when there were no such modern devices as science had not yet progressed as it has today and unfortunately during more than seventy seven years of independence no sincere and drastic steps were taken to modernize those procedures so as to keep pace with the modern era. There is no denial to the fact that Khyber Pakhtunkhwa7 and Federal Capital Islamabad8 introduced the provisions of recording evidence and proceedings through audio and video recordings in their procedural codes, but neither any targeted efforts were taken nor any infrastructure was developed so as to give effect to those provisions. III. INTERNATIONAL PERSPECTIVE ON RECORDING OF ORAL EVIDENCE i. AUSTRALIA In different states of Australia, they revolutionized recording of evidence, at least two decades ago, which highlights how they embraced change and improved the quality of recording of evidence and trial in general. In 1995, Australian state Victoria amended its Evidence (Miscellaneous Provisions) Act, 1958 (formerly known as Evidence Act, 1958) which embodies that evidence shall be recorded through i) shorthand writer ii) mechanical means that is to say by tape recording machine or any mechanical or electronic or other device.9 Similar is the case in the state of Queensland.10 Criminal Rules 2006 of Tasmania bespeaks that all the proceeding in any court of trial or court of criminal appeal shall be recorded by a 'Recording Apparatus'.11 In the state of Western Australia, Recording of Evidence Act, 1975 contemplates that evidence shall be recorded in the following manners12: i. If shorthand reporter is available, shorthand; ii. If a mechanical device and a recorded are available, by mechanical device; or iii. If a shorthand reporter, mechanical device, and or recorded are available, in shorthand or by the mechanical device, or partly in short hand and partly by the mechanical device. ii. UNITED KINGDOM Civil Procedure Rules, 1997 of United Kingdom provides that at any hearing, whether in the High Court or the County Court, the proceedings will be tape recorded unless the judge directs otherwise.13 iii. UNITED STATE OF AMERICA The Federal Rules of criminal procedures of the United States of America empowers its federal courts to record almost all stages of a trial including preliminary hearing14, session of grant jury15, defendant(s)' plea16, either through a court reporter or recording device. Other proceedings such as pre-trial motion17, petty offences and other misdemeanors18 as well as matters relating to probation and supervised release19 are also required to be recorded in the above referred manner. US Federal Courts also follow similar procedure, while recording testimonies in Civil Cases20. In New York, the Chief Administrator of the court may require recording of the testimonies through mechanical devices.21 iv. MALAYSIA Criminal Procedure Code, 1976 of Malaysia enunciates that all the courts shall employ mechanical means for taking evidence.22 v. SCOTLAND In Scotland, Criminal Procedure (Scotland) Act, 1995 empowers the Court to record the proceedings at the trial by short notes and mechanical means23. Moreover, the Scottish Courts and Tribunal Service (SCTS) record solemn criminal proceedings using a Digital Audio Recording System; the recorded proceedings are retained by SCTS; however these proceedings are not routinely transcribed. Transcription is done by an external agency which is contracted by the SCTS.24 vi. SINGAPORE In Singapore, all court rooms are equipped with a digital audio recording transcription system (DART) to digitally record criminal and civil court proceedings.25 The Rules of Court provides that the official record shall be made of every hearing via audio record.26 IV. RECORDING MODELS Earlier the court proceedings were recorded through obsolete tape-recording system which has now replaced with the following digital recording systems: i. DIGITAL AUDIO RECORDING MODEL This model refers to the electronic method or system which is capable of capturing, managing, storing and copying audio recording in a digital format in courtrooms. To make this model work, an audio recording device or system is setup in the Courtroom to record the court proceedings.27 ii. VIDEO RECORDING MODEL The Video Recording Model is specifically designed to visually capture court proceedings. This model includes an advanced technical setup consisting of two main elements viz. (i) multiple sets of video cameras and microphones, and (ii) a control panel. This arrangement includes a multi-channel control panel, where each channel corresponds to video coverage of different participants in the trial, such as the judge, witnesses, parties, advocates, prosecutors. Each video channel is accompanied by audio from corresponding microphones and can be independently reviewed.28 V. TRANSCRIPTION MODELS Traditionally, the stenographers or court reporters were required to create a draft transcript during the court proceedings while employing their expertise in shorthand and would complete the task afterwards outside the court's supervision. Now with advent of modern technology the following models are in vogue. i. DIGITAL AUDIO RECORDING TRANSCRIPTION MODEL Digital Audio Recording Transcription is the process whereby spoken words from digital audio recordings are converted into written text. In this model, court proceedings are recorded or captured using digital audio recording devices which are then converted into text by the transcriptionists by listening to the recorded audio.29 ii. COMPUTER-ASSISTED TRANSCRIPTION MODEL The Computer-Assisted Transcription Model is a method or system where computers are used to assist in the creation, editing, and management of transcripts in real-time or generated from recorded audio or video content. A computerized court reporting equipment viz. steno machine, stenotype machine, shorthand machine, and a skilled and trained court reporter (stenographer) who can operate such equipment are necessary characteristics of this model. Through this model real-time transcripts of court proceedings can be produced by maximizing the speed of stenography. Steno machine like Luminex-II30 consists of steno-shorthand keystrokes which help users convert the keystrokes into text by providing a customized dictionary whereby each set of keystrokes corresponds to a particular text. 31 VI. HOW TO GO ABOUT IT It is indeed an uphill task to effectively record the oral evidence and preserve it efficiently so that it may remain available for evaluation for a longer period of time. Fortunately, there is an Information Technology Wing in every Province which is responsible for maintaining and troubleshooting computers, its accessories as well as Local Area Networks (LAN) set up to connect all computers with the main server. IT Wing can be made responsible for setting up an audio/video recording facility and all clerks can be trained to handle this facility in their respective Courts as IT Wing does not possess sufficient manpower to remain available in each and every Court so the clerks who can handle mobile phones and computers, can easily learn to handle this audio/video facility after considerable targeted training. All the provincial High Courts have their own case flow management portals which have their databases setup at their principal seats. Those databases are equipped with a humongous storage facility (which can definitely be raised as per requirements).The audio/video recording of oral evidence can be saved at three places i.e. first in the form of CD/DVD/Flash-Drive in the concerned case file, second in the database of local servers of the District Courts and third in the database of the High Court. The Urdu and Sindhi fonts are now supported by MS Office and as Stenos are trained in typing English language, they can also be trained to type Urdu and Sindhi languages as a prerequisite before enforcing this new proposed practice. The Stenos who are supposed to record oral evidence in real-time in current regime, will not be required to do so hence they will have time to prepare transcripts of the already filmed oral evidence which will be made part of the record/case-file along with CD/DVD/Flash-drive of the footage. There are hundreds of Courts in the District Judiciary besides Special Courts and Tribunals where hundreds of thousands of cases are pending so it will be quite difficult to initiate this process of filming oral evidence as it will require trained Stenos/Clerks and filming equipment which will need considerable time and revenue. It will be, therefore, better to start with one Pilot Court at District level where a filming facility is set up and trained Steno who could type Urdu and Sindhi languages with ease, is deputed for preparing transcripts from recorded/filmed oral evidence. Initially some cases, preferably murder cases, are filmed and transcribed for the purpose of assessment and analyzing. After an assigned period of time, the output of Pilot Courts can be viewed, assessed and analyzed by a designated committee so as to point out lacunae and areas of improvements. The designated committee may also conduct interviews of Presiding Officers, Stenos, Clerks and IT officials regarding performance of Pilot Courts in order to get the knowledge of problems faced in enforcing this new proposed practice. The designated committee may then propose the measures to be taken to remove the lacunae and improve the functionality of this newly planned practice. To provide legal cover to this proposed practice, the federal and provincial governments may be requested to amend the Codes of Civil and Criminal Procedures in accordance with the proposed practice so that it may be enforced lawfully in the entire country. VII. THE CONCLUSION A litigant invests his lifelong savings, time and energy on his case to get justice but if his case slips away from his hand due to a mistake in the justice system, then what is worth investing so much in it. It is, thus, the duty of the Judiciary to take such measures which do not let the confidence of the general public fade away. Judiciary must strive to fill up the lacunae in its system of administration of justice. If the judiciary succeeded in bringing about this drastic change in the recording of oral evidence, it would change the dynamics of administration of justice and could prove to be ground-breaking for the modern justice system. The lawyers as well as judges will be more cautious while recording oral evidence which will ultimately benefit the administration of justice and the general public at large. 1 Emily Ohman, Issues in transcribing witness accounts and testimonies; https://www.academia.edu/13001467/Issues_in_transcribing_witness_accounts_and_testimonies 2 KEITH A. GORGOS, "Lost in Transcription: Why the Video Record Is Actually Verbatim" Vol.57 (2007): 1057, https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1107&context=buffalolawreview; Tahney Lee, "Court Recording Methods and their implication on criminal trial procedure: Focusing on Digital Audio Recording Model's Potential to Facilitate Concentrated-Hearing in Korea" Journal of Korean Law Vol. 15, (2016): 358, https://s- space.snu.ac.kr/bitstream/10371/97161/1/03_Tahney%20Lee_4%EA%B5%90OK.pdf 3 Justice Ruth Bader Ginsburg's book My Own Words, pp 193 onwards 4 Section 363 of the Criminal Procedure Code, 1898 5 https://en.wikipedia.org/wiki/A_picture_is_worth_a_thousand_words 6 1.William E. Hewitt, Videotaped Trial Records Evaluation and Guide xxi (The National Center for State Courts, 1990) 7 Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2020, S.26B(9) 8 Code of Civil Procedure (Amendment) Act, 2020, S.26C(10) 9 Evidence (Miscellaneous Provisions) Act, 1958; Y.1995, S. 131 https://www. legislation.vic.gov.au/in-force/acts/evidence-miscellaneous-provisions-act-1958/199 10 Recording of evidence Act, 1962, S.5, ss.5(A&B) https://www.legislation.qld. gov.au/view/pdf/inforce/current/act-1962-033 11 Criminal Rules, 2006, R.12 https://www.legislation.tas.gov.au/view/ whole/html/inforce/2007-12-14/sr-2006-024 12 Recording of Evidence Act, 1975, S.5(1); https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_9355.pdf 13 Civil Procedure Rules, 1997, R. 39.9 https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part39#rec 14 Federal Rules of Criminal Procedures, R.5.1(g) https://www.uscourts.gov/sites/default/files/federal_rules_of_criminal_procedure_-_december_2020_0.pdf 15 Ibid Rule 6(e) 16 Ibid Rule 11(g) 17 Ibid Rule 12(f) 18 Ibid Rule 58(f) 19 Ibid Rule 32.1, b(1) 20 Federal Rules of Civil Procedure, R. 30(3-A) (https://www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure) 21 Rules of the chief judge new York, S. 30.1 https://www.nycourts.gov/ LegacyPDFS/RULES/chiefjudge/Part30.pdf 22 Criminal Procedure Code, 1976, Chapter XXV-A, S.272(c) 23 Criminal Procedure (Scotland) Act 1995, Section 93 (1) 24 Transcripts of Criminal Proceedings (Scotland) Order, 1993 https://www.scotcourts.gov.uk/the-courts/supreme-courts/about-the-court-of-session/high-court/criminal-proceedings-transcripts 25 https://www.judiciary.gov.sg/services/audio-recording-transcription-services 26 Rules of Court, Order 38a, Rule 1 (https://sso.agc.gov.sg/SL/SCJA1969-R5/Historical/20060130?DocDate=20060401&ViewType=Print#) 27 Mark V. Green et al., Report of the Study Committee on Trial Transcripts 41 (Submitted to the Justice of the Supreme Judicial Court of Massachusetts on June 30, 2003), available at http://www.mass.gov/courts/docs/trialtransrep.pdf 28 Tahney Lee, "Court Recording Methods and their implication on criminal trial procedure: Focusing on Digital Audio Recording Model's Potential to Facilitate Concentrated-Hearing in Korea" Journal of Korean Law Vol. 15, (2016): 358, https://s-space.snu.ac.kr/bitstream/10371/97161/1/03_Tahney%20Lee_4%EA% B5%90OK.pdf 29 Supra Note.24, 359-360 30 https://www.stenograph.com/luminex_ii 31 Supra Note.24, 355-356