BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 170
Assemblymember Mendoza
As Introduced
Hearing Date: June 9, 2009
Code of Civil Procedure
ADM:jd
SUBJECT
Court Reporters: Rough Draft Transcript
DESCRIPTION
This bill would provide that, until January 1, 2017, a
court reporter's instant visual display of testimony or
proceedings (also known as "realtime reporting"), or both,
may not be certified and cannot be used, cited,
distributed, or transcribed as the official transcript of
the proceedings. This bill would prohibit the citation or
use of an instant visual display of testimony or
proceedings, or both, to rebut or contradict the official
certified transcript of the proceedings. This bill would
also provide that a rough draft transcript may not be
distributed as the official certified transcript of the
proceedings.
BACKGROUND
Under existing law, a transcript created by a court
reporter may be used as prima facie evidence of the
testimony and proceedings only after being transcribed and
certified. A rough draft transcript cannot be cited or
used in any way to rebut or contradict the official record
of proceedings.
Due to advances in technology, attorneys and judges are now
able to see a court reporter's transcription in real time
on laptop computers. To clarify the import of these
instant visual displays, this bill would provide that the
(more)
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instant visual display of testimony or proceedings cannot
be used, cited, distributed, or transcribed as the official
certified transcript, or be used to rebut or contradict the
official certified transcript of the proceedings.
CHANGES TO EXISTING LAW
Existing law provides that the report of the official
reporter, or the official reporter pro tempore, of any
court, duly appointed and sworn, when transcribed and
certified as being a correct transcript of the testimony
and proceedings in the case, is prima facie evidence of
that testimony and proceedings. (Code Civ. Proc. Sec.
273(a).)
Existing law provides that a rough draft transcript shall
not be certified and cannot be used, cited, or transcribed
as the official certified transcript of the proceedings,
and shall not be cited or used in any way or at any time to
rebut or contradict the official certified transcript.
(Code Civ. Proc. Sec. 273(b).)
This bill would add that a rough draft transcript cannot be
distributed as the official certified transcript of the
proceedings.
This bill would provide that the instant visual display of
the testimony or proceedings shall not be certified and
cannot be used, cited, distributed, or transcribed as the
official certified transcript of the proceedings. This
bill would additionally state that the instant visual
display of the testimony or proceedings shall not be cited
or used in any way or at any time to rebut or contradict
the official certified transcript of the proceedings.
This bill would remain in effect until January 1, 2017.
COMMENT
1. Stated need for the bill
The author writes:
Court reporters have noticed an increase by attorneys
referring to instant visual display transcripts as
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evidence. Because these transcripts are generated in
real-time, they are not always accurate, which is why
corrections are made and the official transcript is
certified. Real-time is a service that many court
reporters provide the bench and the parties. But, the
final result of their [court reporters'] work is the
official record, which needs to trump a real-time rough
draft.
2. Real-time transcripts may not represent word-for-word
transcription of proceedings
Under existing law, rough draft transcripts cannot be
certified, used, cited, or transcribed as an official
certified transcript, or be used to rebut or contradict
that transcript. The Judicial Council of California, in
support, notes that this bill would treat "real time"
transcripts (instant visual displays of testimony) in the
same manner as rough draft transcripts and maintains that:
Real time transcripts do not necessarily represent the
word-for-word transcription of the proceedings, thus
should not be used by attorneys or the court as the
official certified transcript of the proceedings to
rebut the official transcript, or otherwise used or
cited as official descriptions of what occurred during
the proceedings.
The sponsor, California Court Reporters Association (CCRA),
further maintains that since court reporters are "under the
gun" to record testimony, word clumping and abbreviations
are often used and could be wrongly interpreted, and thus
this bill is needed to give court reporters the opportunity
to refine notes and verify the accuracy of their product
(upholding their credibility).
Although the instant visual display may appear to be an
accurate representation of the testimony in a proceeding,
the use of an inaccurate display to rebut a certified
transcript would detract from the integrity of any
proceedings relying upon that incorrect information.
However, as noted in Comment 3, technology may advance to
the point where these instant visual displays are reliable
and accurate, and otherwise enable their use as evidence of
the testimony and proceedings.
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3. Bill would require the continued use of certified
transcripts
Due to advances in technology, courtroom participants may
receive a realtime translation of the proceedings through
the use of their instant visual displays. The sponsor,
CCRA, notes:
Software that is loaded onto the computers of counsel
or the court to receive the "Instant Visual Display,"
provides for the functionality of saving, printing,
forwarding and archiving the proceedings. It is common
for the recipient of this service to essentially create
a product which is being cited from and used without
certification by the court reporter.
Although a transcript may be printed by the local court
through their instant visual display software, this bill
would ensure that the services of a court reporter are
still required to create a certified transcript that may be
used as prima facie evidence of the testimony and
proceedings, and prevent parties from using draft
transcripts, printed from that software, to rebut or
contradict the official certified transcript. While those
restrictions currently make sense, at some point in the
future technology may be able to produce an instant
transcript that is reliable and error free. To allow for
this issue to be revisited in light of future developments
in technology, the bill includes a seven-year sunset on the
proposed changes to Section 273 of the Code of Civil
Procedure.
Support : Judicial Council of California
Opposition : None Known
HISTORY
Source : California Court Reporters Association
Related Pending Legislation : None Known
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Prior Legislation :
AB 1372 (Morrow, Ch. 183, Stats. 1997), provides that a
rough draft transcript shall not be certified and cannot be
used, cited, or transcribed as the official certified
transcript of the proceedings, or cited or used to rebut or
contradict the official certified transcript.
AB 1569 (Mendoza, 2008) was virtually identical to both AB
2884 and this bill. AB 1569 was vetoed on grounds other
than the substance of the bill. The governor's veto
message referred to the 2008-2009 State Budget and that
this bill did not meet the governor's priority related to
the budget.
AB 2884 (Portantino, 2008), which was virtually identical
to both AB 1569 and this bill, was gutted and amended on
August 19, 2008, to address a different issue.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
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