Video Recording of Court Proceedings

In Depth

Video Recording of Court Proceedings

Lex Witness Bureau | October 2010

Photography in courtrooms has traditionally been resisted. There is no clear-cut answer as to why it is so, except that the judges and lawyers of the nineteenth century felt uncomfortable being photographed while the court proceedings were in progress. When motion picture (movie) cameras came in vogue, the cost of recording court proceedings was prohibitive and outweighed the utility. Moreover, many members of the legal community thought it would interfere with the decorum of court proceedings and would be distracting. This is how, till early 1990s, still- cameras, microphones, tape recorders, motion picture & television cameras were kept out of courtrooms the world over.

RATIONALE BEHIND VIDEO RECORDING

Sometimes court proceedings are deliberately designed at the instance of one party to tire out the other side, where the former knows that it is in the wrong and will ultimately lose. For instance, adjournments and pass-overs are sought on false and flimsy grounds and there is no way to record and verify. Besides this, there are a host of other improprieties, too many and too varied to detail. Parties put forward contentions ranging from irrelevant to bizarre. The adversarial nature of the system is mis-utilised, the productivity of the court is reduced, thereby undermining the respect and confidence of the citizens in the judicial system. It is estimated that 75% of the court’s time is wasted (plus has corresponding ‘cost’ to the other party, i.e., the party who is in the right) and is the main factor responsible for delays in delivery of justice today. If constant video recording were in place, these tactics could be prevented.

Further, witnesses readily tell lies, and prosecution for perjury remains difficult because the following two facts have to be proved before the trial court (1) the witness was the ‘one’; and (2) this is what he stated. However, if video-recording is permissible and prosecution of a particular witness is to be ordered for giving false evidence, it will be very easy to establish the identity of that particular person and what he had stated. Even in a complaint under section 340 of Code of Criminal Procedure, prosecution can also, along with other copies of papers, attach a copy of the video (on a CD) and the transcript. Similarly, in the event of ‘contempt’ during court proceedings the truth or otherwise of a complaint can be determined by going through the recorded version to ascertain what exactly the utterances or gestures were, and accordingly decide the question whether it constituted contempt.

USES OF VIDEO RECORDING

Some of the possible uses of video coverage and recording are listed below:

Use of excerpts from trials for news programming.
Televising the entire trial without editing and gavel to gavel.
Recording the court proceedings on videodisk, but using that only for the purposes of a record of the trial (as also for appellate proceedings) and as an aid to the judicial process.
Sending picture by closed circuit to another room where people can watch without causing disturbance in the courtroom
Televising High Court and Supreme Court proceedings.

For obvious reasons, the journalists (press) are primarily interested only in the first of the above –referred possibilities, but it is the third use, ie., use as an aid to judicial process, which is of greater importance.

The two main objectives it will serve are:

(i) be a more accurate and, therefore, useful record; and (ii) prevent impropriety in conduct before the courts and waste of judicial resources. The second is in ‘urgent’ need of attention today, for the situation in this regard is serious.

THE TECHNICAL ASPECTS

The proceedings in the court could be translated by real-time transcription (stenographer and voice recognition technology) and fed as a data stream through a smart encoder that puts it into an integrated format so that the text-testimony appears alongside, or below the video record of what takes place in the courtroom. Like the running captions at the bottom of the TV screen or the sub-titles of a film, an internal clock in the video camera or equipment, connected and synchronised with the court stenographer’s computer, would ensure that the video record and text record of trial proceedings match. The traditional ornamental witness box too finds replacement by a modern one.

BENEFITS OF VIDEO RECORDING

Let us now take a detailed look at the benefits which video recording of court proceedings offer.

ACCURACY OF RECORD
While the official court record will still be the printed paper, video records would ultimately be a valuable resource for those events, conduct and nuances which paper cannot record. False claims for adjournment or pass over on the ground of being busy in another court would stand curtailed for now the presence in ‘that other court’ would be verifiable. The accuracy in the record of the proceedings and the availability of material to impose costs and fines, and material to more effectively order prosecution of the wrongdoer (and, therefore, prevent wrongs) are two important benefits.
BETTER PREPARED
Parties, lawyers, as also judges, will be better prepared if they are going to be recorded on video – and prior preparation means lesser time consumption and more circumspect presentation. The presence of continuous video recording will drastically reduce the amount of chaff that is presented to our courts today. The quantum of misstatements and misleading submissions will drastically fall. The Judge will be able to achieve a quicker grasp and uptake; and achieve greater accuracy and speed in terms of being able to adjudicate and dispose of the matter in lesser time.
IMPROVED CONDUCT
Apart from ensuring accuracy of the record and of the end result, we should examine video recording for propriety of conduct from the perspective of parties, witnesses, court staff, lawyers and judges. It is human nature that when a person knows that his utterances are being recorded, he will be careful in what he says. The human voice level will also remain within decibels that are acceptable. At the subordinate level, particularly the Mofussil courts, most litigants, though present, are not able to fully understand what is going on in the court. Their main criterion is how loud, vocal, and vociferous the lawyer is. The utility of the arguments addressed, their relevance, their finer parts, and the ability to be slow and steady, is considered by them irrelevant, or even a sign of ‘incompetence’. Inasmuch as presence of the video record will dissuade the lawyer from all such improprieties, he will no longer be able to sway from the right conduct in trying to ‘impress’ his client. Moreover, a communication by the lawyer to his client, which, at times, is at variance from that which actually transpired in court, will no longer be possible.
CONTROL BY THE COURT
Controlling the proceedings, particularly the trial, especially tackling the obstructions and impediments placed by one of the two parties, is presently a daunting task. Even many a ‘Contempt’ is ignored. Knowing that the proceedings are being video recorded, many ‘uncontrollable’ lawyers will start to conduct themselves differently. With video recording, the court can more readily, and effectively, take action against the errant parties/ lawyers, and thus serve the purpose of maintaining propriety and removing of obstructions in the flow of court work.
WITNESS BEHAVIOUR
Witnesses who might be inclined to exaggerate or distort their testimony will stick more closely to the truth once they know that they are being video recorded. They will be less prone to tell lies. Moreover, the fear of being prosecuted for perjury will now be seen by them in a different light. Particularly in criminal courts there will be two more advantages. The tutoring by the IO of the witness just before his testimony is to be recorded will be curbed. It will be easy for the judge to identify which of the witnesses cited are genuine and which of them do not know the facts. Even the defence lawyers will then know who are the stock witnesses; as are usually cited as eye witnesses in many cases. The very possibility of somebody impersonating another – party, witness or lawyer – will be eliminated.
GREATER ACCURACY IN THE JUDGMENT
Video recording of proceedings will ensure accuracy of the record. Further, by preserving (and making available) matters which are not apparent from the written record, the judges can form a better view of the witnesses and that would lead to better conclusion. While deliberating on a judgment, the Judge will be able to re-play for himself the recorded proceedings of any hearing from day one right up to the final arguments. The Judge can also re-examine the demeanour of the witnesses while they gave evidence, and can come to a more accurate conclusion. Devoting some time on running through the video disk before pronouncing the judgment will give unprecedented accuracy to the judgment which, in turn, will mean lesser need for appeals and, above all, a greater degree of party satisfaction – in fact, of public confidence and trust in the system. Moreover, when a particular point is addressed and the judge ultimately finds that it was a case of misleading/misguiding the court, he can re-run that portion and satisfy himself before imposing costs and fines for having made a contention that was against the record or against the law.
TIME-LOG

With video recording in place, the court will also have before it an accurate picture of how much court time was consumed by the case – i.e. how much was properly ‘consumed’ and how much simply wasted – no matter what the spread may be, say, a few seconds at one hearing and two hours at another. The date and time stamp feature of the video recording system–together with and routed through the court’s mainframe computer (which also carries case and litigation management software) – will enable to obtain, at any point of time, a printout in the form given below:

The very little time in the fourth column shows that nothing useful would have been done. For instance, the entries of 9.07.2007, 30.05.2008 and 24.11.2008 on the printout show that the matter was passed over before it was taken up. Not only that, at the bottom, it will also depict the total amount of court time consumed by the case. In fact, the court’s computer can go further and calculate what would be the ‘cost’ of such court time and also calculate (automatically) interest from that date at the notified rate with half-yearly rests, till date (of the printout).

There is a strong case for recovery of cost of ‘court time’ from the party which has lost, for two reasons: (i) preventing of waste; and (ii) augmenting resources for establishing more courts. There is also a need for imposing a fine for impropriety in conduct, payable to the state (court system).

COSTS AND FINES
Once again, of the two parties, (in 90% cases) one party places obstructions, to prevent which the effective tool is costs and fines, but many times, this cannot be wielded– and so for want of undisputable record of the wrongdoing. This is where video recording will show its worth. With a printout as this, the court will be in a position to pass accurate orders for: recovery of costs of court time against the parties; the costs that ought to be awarded to the successful party; determining who should ultimately bear the brunt of that ‘cost’; and in addition thereto what fines payable to the state ought to be imposed. Stated simply, the imposition of costs and fines for impropriety in conduct – so very essential if our justice system has to function to its full efficiency – cannot, in practical terms, be fully carried out unless court proceedings are video recorded. Thus with video recording, the court can more readily, and effectively, take action against the errant, and serve the purpose of maintaining propriety and removing of obstructions in the flow of the stream of justice.

THE COST CONSIDERATIONS

In addition to the need for, and the utility of, video recording court proceedings, we also need to examine the following: What will it cost? Where will the funds come from? The true question really is: will the advantages and the resultant savings in costs justify the effort and the expense? The objective is to demonstrate that it (video recording) is not something that we cannot afford, and that the cost far outweighs the benefits.

In a large-sized court complex having, say, 50 courtrooms, installing such equipment in each courtroom (with a central control room), recording the day’s proceedings on unalterable DVDs with date, time and court number imprint, would involve an expenditure of about Rupees three lakhs per courtroom. The operating cost (i.e., running costs, including consumables, maintenance, personnel and replacements) would also be about Rupees two lakhs per year for one courtroom. This is comparable to the overall cost of hiring a steno-secretary for one year, but without the advantages of video recording. In other words, the cost of providing video-recording facility for a Court would be a little less than the cost of installing (and operating) airconditioning for that Court and providing other related services. Then, except initially, it is not that an additional burden will fall on the State. Of the two parties, the one in the right will be willing to contribute towards the cost. So much so that he will prefer to ‘pay’ for this rather than (indirectly) pay for the airconditioning in the courtroom. Of course, the cost may be charged as additional court-fees, but the parties will be willing to contribute such cost, for by doing so, they save several times that which they today lose in the form of: actual expenses incurred; and (indirect) cost of delayed or imperfect justice.

If we were to be conduct an experiment and provide video recording in a few courts of a court complex, and make it obligatory for those who request for video recording to also pay the cost of video recording (as per hour of court time), calculated after factoring-in all costs and multiplying by three (i.e. charge 200% premium), we will find that in a large number of cases, at least one party of the two would be willing to pay that extra. Who that party will be, is a matter of plain common sense.

Apart from recovering directly as aforesaid or indirectly through court-fees, courts may also charge reasonable fees for copies of video recordings of court proceedings. In any case, the savings in costs of court time alone – by reason of increased productivity – will be several times more than the cost incurred on video recording.

RESISTANCE EXPECTED

The proposal to install video equipment and make a continuous recording of the court proceedings is bound to find resistance from many corners. Therefore, let us examine this issue as well. To put it briefly, it is those who will lose out (on what is presently their gain by the very many improprieties) who will be the main force behind the resistance or opposition to video recording.

Most lawyers will welcome it. It is only a few lawyers who specialise in a particular type of practice – obstruct and delay – that are likely to oppose. There will also be those who may not readily appreciate the benefits, and a few who, depending on the kind of their practice, will oppose the move. Judicial officers who are confident of their calibre, hard work, and integrity, will welcome it, for now there will be a more accurate record of their performance. Some (or many) of the support staff in the court will also oppose it, for it will expose their lethargy and other malpractices. On the whole, there is no rationale behind any reluctance on the part of judges, lawyers and court staff to have the court proceedings video recorded. It is time that this concept is recognised and put in place.

But what about the parties? The ones who are in the right (i.e., whose claims/defences are correct) will even offer to pay extra court-fees towards the cost of video recording as by doing so not only will they have justice sooner, but also more accurate results, and at lesser overall cost. Those who stand to lose their ability to continue with their wrongs will be the ones who will manoeuvre such ‘objections’ and resistance. It must also be noted that, as compared to those supporting video recording, those opposing will be more vociferous because then their ability to create success out of a wrong will stand diminished.

It requires no discussion that our judicial system is reeling under an overload. All it calls for is for us to conceive and put in place every system that helps prevent waste and improve efficiencies. And it is here that alongside reform in procedures, video recording of court proceedings will have an important role to play. The importance to a society of open justice is considerable. A trial is a public event. The more open and public a trial is, the more likely that justice will prevail. It is said that what transpires in the courtroom is public property. The fact that the technology exists which could bring about greater public confidence and trust in the judicial process should not be ignored. The so-called bar to video recording (if any is said to exist) of court proceedings needs to be removed.

Having said that, the issues surrounding broadcasting the court proceedings are complex and further studies are required. Whether to allow television and other electronic coverage of Supreme Court, High Court and other criminal court proceedings is a debate that essentially balances the concerns about the adverse impact televising could have on the justice system with those about greater public access to judicial proceedings. Any objection is greatly outweighed by the advantages involved – and these are too many to be ignored. Like many other traditions of the past, any objection to video recording must also be reviewed in the light of technological advances.

Sambhunath Tiadi Advocate, Journalist, and Entrepreneur (Bhubaneswar)

“Video recording of court proceedings would prove to be very beneficial to the public and others. This recording will help the higher courts to readjudicate the cases on appeals or otherwise. ometimes the witnesses differ from their earlier statements/depositions, and it will be feasible for the higher courts to find out the integrity of such witnesses in any case. Further, it is a known fact that sometimes on the date of hearing, noting or proceedings of the court, judges forget to note own the proceedings. In such cases, the video recording can remind the judge of his earlier remarks in the notesheet on each and every significant date of the case. In addition to this, e-cameras installed in government organizations will help in knowing the movement of officials, their time of attending office etc. The benefits are thus numerous.

It would bring about more accountability and accuracy in the judgments. When the proceedings will be video recorded, the judges will be wary of taking any wrong decisions, as the public who would have the knowledge of video recording would protest against the judges for any biased decisions taken by them. As per the existing practice, only the witness, some advocates and judges are present at the time of hearing. But once there is video recording of the proceedings, it will come to the knowledge of the citizens as well.”

Rohas Nagpal President, Asian School of Cyber Laws, Pune

With technology being easily available, cheaper etc, is India prepared to have court proceedings video recorded?

It is definitely feasible and it is high time we should have it at the option of both the parties. However, care should be taken since recording is done in archive, and the same will be later used by other courts. This archiving process and authentication needs to be very strong so that twenty years later, if a video recording is pulled out, it should be provably unaltered. So the kind of mathematical authentications that are used to archive it need to be ‘top notch’. If those aspects are taken care of, then I am sure that this is going to work.

Video-conferencing, being a parallel manifestation, is also advisable when you look at the kind of problems that are involved in bringing the under-trials to the court, the law and order issues, the costs that come in etc. Video conferencing is the way out in such cases. There are few issues that need to be taken into account. For instance, there has to be a very strong process in place to ensure that authentic information is coming in through the channel of video-recording or video-conferencing, whichever be the case.

What other shortcomings do you see in implementing this technology?

As I said, the only issues are of authentication and subsequent storage and archiving. If these issues are addressed, then it will work. Today, the technology exists to achieve all this, but the Government must ensure they are using proper technology and proper people who are trained for this work.

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