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Contemporaneous Recordings for Referee Hearings in Michigan

Contemporaneous Recordings for Referee Hearings in Michigan

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Published by DougDante
The purpose, use, and misuse of contemporaneous recordings for referee hearings in Michigan court. Their value for fraud detection, thoughts on dealing with court officials who won't provide them.
The purpose, use, and misuse of contemporaneous recordings for referee hearings in Michigan court. Their value for fraud detection, thoughts on dealing with court officials who won't provide them.

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Published by: DougDante on Mar 11, 2008
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06/16/2009

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Contemporaneous Recordings for Referee Hearings in MichiganI 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 ifthe referee's recording equipment can make multiple copies simultaneously and ifthe parties supply the recording media. A recording made under this rule may beused solely to assist the parties during the proceeding recorded or, at thediscretion of the trial judge, in any judicial hearing following an objection tothe 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 endof the hearing is a signal to any unethical player in the court who might seek toinfluence 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 thatstatement on the official court transcript.So if this were me, I would request a transcript to be used in a de novo hearingto toss the recommendation of the referee in its entirety and disqualify thereferee from further proceedings on the grounds that the referee is sexist andunable to fulfill his/her duties under the law.So an underhanded court clerk, having received your order for a transcript, wouldillicitly notify the referee, who sits down with the court recorder and carefullyreviews the hearing for statements that might be used against his/her ruling incourt.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 itwere made public?So the referee works with the recorder to edit those statements, or "loose" therecording in its entirety. Perhaps the court recorder does this because he/she isalso biased, and believes that it's OK to break the law "for the kids". Perhapsthere'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." Smartmove. AFAIK, court recorders have no immunity for intentional torts.So the referee goes to the court reporter, who is going to listen to the recordingand make a transcript. He/she asks the court reporter, "Can you accidentallyforget to type that statement?". Again, this might involve a bribe.So you get the transcript, and lo and behold, the statement for which you'relooking isn't in there. The referee's recommendation is upheld. The judge tellsyou that it's impossible when you claim that you heard the referee say thatchildren 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 ACOPY. You can produce that copy, and compare it to the court recorder's copy, andshow that the court recorder falsified it. You can sue the court recorder for theintentional tort of altering the recording. He/she could go to jail. So he/shesays "No way".So the referee goes to the court reporter. "Can you accidentally forget to typethat statement?" Perhaps the recorder says OK. Perhaps there is a bribe. Withthe right judge, who refuses to listen to your contemporaneous copy of therecording, 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 wasaltered, causing a political mess, then there is no hope. Who cares? They'retaking your baby. Hold you in contempt! The judge could be impeached or loosereelection after a scandal like that.Having a contemporaneous copy IN HAND at the very end of the hearing is anassurance that you have the power to prove that officials of the court haveillicitly altered the transcript that's used in court and is supposed to reflectthat 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 ofproceedings held in Michigan courts or of depositions taken in Michigan asregulated by Michigan Court Rule 8.108(G). Certification is accomplished through atesting process administered by the Court Reporting and Recording Board of Reviewthrough the assistance of the State Court Administrative Office.”http://courts.michigan.gov/scao/services/crr/crr.htmSince my initial request for contemporaneous recording would be in writing, ifpossible, I would expect a written response. Anyone indicating thatcontemporaneous 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 thatis in use. If they're lying, they'll avoid giving it to me, so I would make awritten request via certified, return receipt mail. I would send a second letter,certified, return receipt, addressed to “Court Recorder” at the address of thecourt, 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 unableto do his/her job, was not given the name of the recorder or the model number ofthe equipment. I would also ask at the hearing for that information and requestthat the referee verify that both the recorder and the equipment are certified bythe 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, tothe Court Reporting and Recording Board of Review at PO Box 30048, Lansing,Michigan 48909. “http://courts.michigan.gov/scao/services/crr/crr.htmAlso, 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” orother mechanism so that they can say things off the record to the parties duringthe 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 ConferencesIf a conference is off-the-record, the operator should make certain to record thejudgeannouncing that it is off-the-record. The judge is the only person who can orderan offthe-record discussion. The recording equipment should then be turned off. Note thecounter number where the recording was interrupted, and indicate next to thecounternumber that an off-the-record conference occurred at that point and the time itoccurred.When the conference is over, the recording equipment should be turned on, the timenoted, and logging resumed.”Section 4: Reporting/Recording the Proceedings and Depositionshttp://courts.michigan.gov/scao/resources/publications/manuals/crr/crr_sec4.pdfIf either party is representing themselves, then I don't personally see how therecan be any sidebar conferences should be on the tape.Any gaps in the tape when it is contemporaneously may indicate that the refereeknowingly made a statement within the hearing that he or she did not want on therecording or in the transcript. I might try to record an admission that thereferee 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 youpresent”.This is something that I might think the referee might intentionally try to avoidhaving 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 itinto normal statements.Me: “As you can see, my income for ... Didn't you just say one minute ago that youare 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 maytry 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?”

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