Academic journal article Justice System Journal

Appreciating the Changing Factual Meaning of "Verbatim," or Battling the Curse of the "Verbatim" Assumption*

Academic journal article Justice System Journal

Appreciating the Changing Factual Meaning of "Verbatim," or Battling the Curse of the "Verbatim" Assumption*

Article excerpt

Justice system researchers and participants frequently rely on transcribed reports of oral trial court proceedings, yet commentators tend to miss changes in the factual meaning of "verbatim" as it relates to court reporters' work products and to overlook judges' notes as primary sources. This article reviews and updates the literature on the development of court reporting, including the effects, information retrieval pitfalls, and potential for catastrophic information loss posed by developments since the late 1960s. Justice system action must be taken to overcome the inherent research obstacles posed by information storage and retrieval systems using rapidly degrading, easily damaged media.

Justice system researchers and participants frequently rely on transcribed reports of oral trial court proceedings. Trial court researchers' writings based on reports of oral events sometimes suffer from factual assumptions surrounding the concept of "verbatim" reports, their reliability, and even their availability across time. This article seeks to assist with the effort to overcome the curse of the "verbatim" assumption and discusses some serious problems posed by modern information storage and retrieval. A number of flaws appearing in justice system research reports using historical evidence result directly from the failure to appreciate the context of the time periods involved. Time and place unavoidably affect the availability, reliability, value, and even the range of plausible meanings of historical evidence. Time and place matter. Presenting justice system research without explicitly describing the effects of the time and the place involved, or at least appreciating the effects of time and place, not only disserves researchers themselves but also results in audience misunderstanding and misinformation and sometimes even leads to demonstrably incorrect research results.

The factual meaning of "verbatim" underwent major transformations over the centuries, even though the concept seems to have retained the same intended meaning throughout. Yet we shall see that commentators tend to miss the importance of changes in the factual meaning of "verbatim" as it relates to court reporters' work products. Because background sources in the development of shorthand and court reporting generally tend to be esoteric, out of print, or both, we first quickly review the literature to provide a single, short, and easily retrievable source. Then this article updates the literature by discussing the effects and information retrieval pitfalls of technological developments since the late 1960s. While this article narrowly focuses on reports of oral Anglo-American trial court proceedings, the discussion applies to reports of oral proceedings of any type.

The nature of the primary sources, that is, the reports of oral court proceedings and trial judges' notes, not appellate courts' factual recitations, creates some difficult problems and some insurmountable problems in constructing approximations, much less accurate, detailed pictures, of what really went on in the trial courts at any time. The availability and reliability of primary sources vary from period to period and from place to place. The problems of both availability and reliability arise from several interrelated aspects of time and place. Questions relating to what the participants recorded and how they recorded it do not lend themselves to obvious answers. The ability of the reporters to record and then report the courtroom action "verbatim" remains open to serious question until the mid-nineteenth century in most instances and even later in many instances. While judges' notes present a few of their own considerations, some of the main limitations applicable to shorthand reports of earlier eras apply with even greater intensity to judges' notes of any era as reliable and complete sources. The ability of the trial judges to record and then report the courtroom action "verbatim" has not existed at any time. …

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