Vess Mitev
NYLJ/Rick Kopstein
They say sunshine is the best disinfectant, and in the age of Twitter and video feeds, a legislative proposal to allow cameras back into New York courts, is a step in the right direction; ideally, streaming video feeds of every courtroom should be the norm.
The sine qua non of a court of record is that there is a record to be made. While courtrooms are explicitly deemed to be open to the public under the law, Civil Rights Law Article 5 makes it a misdemeanor to tape inside a courtroom. But so many times the black and white record made of the proceedings is simply insufficient for the purposes of capturing the conduct that transpires within the four walls of the Court.
Any time an appellate court is asked to judge the credibility of witnesses, the court is bound by the two-dimensional record of the proceedings. Having video evidence to support the legal argument would erase benefit-of-the-doubt claims that attempt to further "interpret" the record.
A textbook example of this is a dispositional proceeding in a criminal case, wherein on appeal the defendant will argue that he was denied the ineffective assistance of counsel by pleading guilty, allegedly because he was not fully informed of the risk of doing so.
The appellate court will review the colloquy between the defendant and the trial court, which typically advises the defendant of his rights at trial, and that he is giving up said rights, and asks if the defendant is doing so of his own consent, sound mind, and free will, prior to accepting a guilty plea.
Since there is no precise formula for determining whether the trial court's discussion with the defendant was adequate, in apprising defendant of the benefits and risks of the bargain, and whether the defendant's decision was voluntarily, willfully, and intelligently made, a review of the record can often be read both ways. But, if the proceeding was taped, the appellate court could evaluate the defendant's body language, his alertness, his non-verbal conduct and his other actions in tandem with the spoken words on the record.
Another major source of contentions: interactions between and amongst attorneys and litigants in the courtroom -- which are the source of many a grievance – could be reviewed by the disciplinary panel to separate the frivolous from the material. Other sleight-of-hand tricks, such as swiping a document off your opponent's table during trial, or claims of inappropriate contact between pro se litigants and attorneys, could similarly be preserved for review. As play-by-play commentators are fond of saying, "tape don't lie."
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