Court reporting has advanced. The courts themselves? Not so much

Reporters now have any variety of new technology at their fingertips when reporting from the courts, but when it comes to court process itself, they find themselves fighting the same old battles for exhibits, seats and access to lawyers and judges. Eric Mark Do reports from a panel discussion on court reporting held at Ryerson University.

Reporters now have any variety of new technology at their fingertips when reporting from the courts, but when it comes to court process itself, they find themselves fighting the same old battles for exhibits, seats and access to lawyers and judges. Eric Mark Do reports from a panel discussion on court reporting held at Ryerson University.

Technology is constantly changing how we live and work, and its role in court reporting is no exception. Verdicts and proceedings can be tweeted out as soon as they occur and this era of instant information sees reporters and news organizations with more tools in the race to be first.

But though the technology available to reporters to get information to the public has advanced, the technology available to them to gather information in the courts has not. Journalists and lawyers argued that it may be time for the courts to upgrade procedures and document-handling to encourage equality in access to information while stressing the importance of reporters’ accuracy while using new technologies at a panel discussion at Ryerson University last week.

Justice Michael Tulloch of the Ontario Court of Appeal moderated the panel, which consisted of veteran crime reporters Sue Sgambati of CP24 and Peter Edwards of the Toronto Star, as well as defence lawyers Vincent Clifford and Marie Henein, and focused on the relationship between the media and the courts. Ryerson’s Law Centre put the event on in partnership with the School of Journalism. 

Upgrades to court system, infrastructure

Edwards floated the idea of allowing the media to have access to court exhibits and documents already seen by the jury by placing them in a password-protected location online. That way, Edwards said, there is equality in terms of access to the information because all journalists would receive the password at the same time. The lawyers agreed that such a system would save them a lot of time as well. In the U.S., Henein said, there is online access to generally every pleading and every exhibit, but Canadian courtrooms are not computerized.

Edwards recalled a situation where access to court documents and exhibits was problematic.

“I had one trial where, at 5:30, a defence lawyer was giving a memory stick to a competing reporter, the competing reporter was supposed to share it with the rest of us,” he said. “I mean, that's like asking a wolf to share it with a lamb. It just doesn't happen.”

Electronic filing of court records is common in America, and many documents are available online. Services include Public Access to Court Electronic Records (PACER), which was developed by the U.S. Courts in 1988 to “facilitate and improve electronic public access to court information at a reasonable cost.” While PACER was originally a system accessible on terminals in libraries and office buildings, it became available on the web in 2001. It is not without its flaws, and a 2009 article in The Guardian examined new initiatives that aimed to make documents easier to access for a lower cost.

In May 2003 in Canada, a subcommittee of the Judges Technology Advisory Committee published a discussion paper on “Open Courts, Electronic Access to Court Records, and Privacy” for the Canadian Judicial Council. It found that while many courts across Canada had begun projects to electronically file court records, they were all in varying stages – including termination.

“No court in Canada facilitates the e-access to court records,” it stated, but at the same time, “such accessibility is nonetheless inevitable.” As well, the ability to electronically access docket information changes from province to province.

While at the time of its publication, it listed lawyers, members of the public, and the media as likely to be “interested in the establishment of e-access policies,” it also concluded that “it appears that in Canada no person or organization is taking an active role in initiating discussion and debate amongst such interested persons about e-access policies.” These policies, it decided, should be put in place before there is electronic access to court records.

In terms of access for journalists, it said that “the purposes for which media … intend to use court records and docket information may conflict with the interests of the parties.”

The Canadian Newspapers Association responded in 2004, urging the CJC to develop policy within the framework it had identified in order to facilitate electronic records and equal access under the open courts principle.

Another area in need of upgrade is the audio systems in the courtrooms, said Sgambati. Reporters still have a hard time hearing things and getting quotes. What often happens, she said, is that journalists gather afterward and “compile what (they) think the quote would be in a consensus.”

And the accused in the courtrooms are still being shown as sketches. Sgambati said high-profile cases should warrant having cameras in the courtrooms so that the public can see the proceedings and judge for themselves.

Courtrooms are open to the public, said Clifford. “I don't think that from a logical perspective it's necessary for you to be able to get into the courtroom,” he said. “If you wanted to watch it, from another location you should be able to do so. So I think the time will come where we will see criminal trials being broadcast.”

Court/media relations

The panel agreed that the relationship between the court system and the media varies greatly. In high-profile cases, Sgambati said, the media is accommodated greatly, but the treatment of the media can be very different in another case the next day. She said getting access to lawyers and judges depends on whether they are media-friendly.

Henein said she will often assist reporters – even if she isn't involved in the case – when she has a “good level of confidence in the reporter.”

Conflict ensues when the freedom of the press (especially when the media asks for information before a jury sees it) infringes on an accused person's right to a fair trial, said Clifford.

Edwards agreed. “I don't think we should publicize anything a jury hasn't seen, I don't want to jeopardize a fair trial.” But he remarked, “In 2012, I don't see why we should have to curry favour, play personalities to get exhibits.”

Speed and accuracy

The courts may be lagging behind advances in technology, but reporting techniques have not. “The (smartphone) has replaced the notepad,” Sgambati said, recalling her first court assignment in the 80s, where reporters lined up at pay phones to call their stories in to the newsroom. She questions why there is still a “pre-discussion” of whether accredited media personnel are allowed to use these devices.

But Sgambati also calls for due diligence in their use. In the Robert Pickton case, reporters immediately emailed out a not guilty verdict from the courtroom, said Sgambati. While it was true that Pickton was found not-guilty of first degree murder, he was convicted of six counts of second-degree murder and was sentenced to life in prison with no chance of parole for 25 years. Waiting for the full verdict would have prevented the moments of hysteria that followed the initial not-guilty report, she said.

Clifford also advised reporters to wait before sending out information. “It's not for the judges, or the defence lawyers to censor anybody,” he said. “But you need to be aware of the fact that we are affected by what we see and you will be affected by what you see. And when you're using your hand-held devices, and you're tweeting, take a moment and reflect.” You can't “put the genie back in the bottle” once it's out, he said.  

Edwards agreed. “When in doubt, leave it out,” he said, recalling the adage. He added that you can always add something in later. “There are a lot of things frankly…I just don't think it's good taste,” he said. “Some exhibits are horrific.”

On the topic of accuracy in reporting, journalists are not tape recorders or parrots said Edwards. “Like it or not you're going to have to assess people's credibility…if someone tells something that quite obviously is a lie, you're going to have to do your research and take a stand on it.”

The discussion can be viewed in its entirety here.

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Correction: A previous version of this article stated the Ryerson University panel took place earlier this week. It took place last Wednesday, Sept. 26. We apologise for any confusion.