Over the past twenty years, most American courthouses have been wired with audio and video recording equipment to enhance security and economize on court reporting costs. These in-house alterations have an overlooked consequence for appeals. The mere existence of these recordings of all courtroom occurrences will unavoidably change the way appeals are handled and reviewed.
Appellate courts will need to make new types of decisions on whether to accept the audio-video recordings as appellate records or continue the reliance on transcripts and items entered into evidence. If the appellate courts do not accept audio-video recordings as appellate records, or if they accept some but not all recordings, the courts will need to develop a fair and rational way to decide when to use appellate records based on transcripts only and appellate records based on an audio-video recording . Attorneys will also need to consider whether to demand video recordings for trials, and, how to use the existing, probably more limited, forms of recording for appeals.
This Article will discuss the likely implications of complete, gavel-to-gavel audio and video trial court recordings on the appellate record; on standards of review including appellate review of evidentiary rulings and witness credibility; and on distinctions between appeals and collateral actions.