Academic journal article Justice System Journal

The Elusive Record: On Researching High-Profile 1980s Sexual Abuse Cases*

Academic journal article Justice System Journal

The Elusive Record: On Researching High-Profile 1980s Sexual Abuse Cases*

Article excerpt

This article reports on the difficulties encountered trying to research trial court documents in dozens of "high-profile" child sexual abuse cases from the 1980s. The article is organized around three concepts that are central to researching trial transcripts: 1) permanence, 2) completeness, and 3) accessibility. Each of these concepts is called into question by research the author conducted over a period of ten years. The article also reports the results from an original state-by-state survey of court record-retention policies. Twenty states have a permanent record-retention policy for all felony cases, and twelve have permanent retention policies for some felony cases and time-limited policies for others, while three employ a sampling procedure to identify the cases to be retained permanently. Fifteen states have policies limiting the time before they dispose of court records. Overall, less than a majority of states treat trial transcripts in felony cases as archival documents. Some states destroy such transcripts as soon as three years after the case is over. A surprising amount of material that is painstakingly transcribed and memorialized in felony trials is subsequently lost to history.

Trial transcripts are often referred to in terms that suggest that they are tangible nd permanent. Trial lawyers famously intone phrases like "let the record reflect" and "strike that from the record," suggesting that whatever follows will be available to be checked at a later date. In most trial courts, the record of the oral proceedings is literally produced by court reporters, who transform proceedings from oral to written form. While some jurisdictions have adopted audio- or video-recording systems, court reporters are still the norm across the country. The court reporter creates a "certified transcript" if there is an appeal. In extraordinary cases, transcripts are created overnight. These "dailies" are available for attorneys to use while a trial is in progress. In the Internet age, daily transcripts might even be posted online, as they were in the O.J. Simpson murder trial. All of this leaves the impression that the record is a solemn, almost sacrosanct artifact of court proceedings, one that would be possible to examine at a later date.

At least, that is what I assumed when I embarked on a research project to examine the record in high-profile child sexual abuse cases that went to trial in the 1980s. The focus of the research was cases that have since been labeled as "witch hunts" (see, e.g., Charlier and Downing, 1988; Nathan and Snedeker, 1995; De Young, 2004), and the basic approach was to review as many court documents in each case as possible. The research in each case began with the court docket and the ultimate aim of inspecting or photocopying the trial transcript. Sarat (1999:355) points out that "the essential narrative elements of the trial are recorded and encoded in a transcript," but he cautions that "transcripts also invite readings of silences and exclusions."

With the sustained contribution of dozens of dedicated undergraduate research assistants, original research has been conducted in seventy-two cases to date. A few of those cases remain open research challenges; otherwise, the research is now largely complete, more than ten years after the first case was researched. All but two of these cases were filed in state court, and almost all of the trial dates ranged from 1984 through 1992. Many of these cases were the longest criminal trials in the history of their state or county. There were a handful of acquittals and mistrials. All of the cases that resulted in conviction were appealed.

Much has been written about these cases, particularly in the 1990s, when many of these convictions were overturned on appeal. While I knew that the sheer size and complexity of these cases would pose research challenges, I assumed that the archival work would be tedious but not otherwise difficult. …

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