The Michigan Court of Appeals (opinion and dissent) and Michigan Supreme Court Justice Kimberly A. Thomas (in a dissenting statement) made recent note of the incomplete transcript from the pretrial hearing in the adjudicative phase of a child protective proceeding. “[R]espondent’s answers to important questions about her understanding were not recorded” and the transcript had multiple “(inaudible)” entries.
Justice Thomas footnoted how
The Court of Appeals diligently took the step of also listening to the proceedings to try to determine what was said, but it could not further clarify. See In re T Hewitt, unpublished per curiam opinion of the Court of Appeals, issued October 23, 2024 (Docket No. 368861), p 3 (“In numerous instances respondent-mother’s responses are noted as inaudible . . . . [T]his Court sua sponte requested the audio recordings of the plea hearing. Review of the audio recordings of the transcript did not remedy the deficiencies in the record.”).
These appellate observations are a good reminder of the recording operator’s daily responsibility to pretest the recording equipment and microphones before proceedings start, and the presiding judicial officer’s responsibility to ensure that a clear record is being made (including clarifying that any nonverbal occurrences like witness head nodding).
They can also be a good reminder that MCR 8.109(C) allows an attorney or self-represented party to file a motion for permission to create their own audio recording of a part or all of a proceeding to aid in the prosecution or defense during the recorded proceedings (the self-recording cannot be used publicly).
Rule 8.109 Mechanical Recording of Court Proceedings
(A) Official Record. Trial courts are authorized to use audio and video recording equipment for making a record of court proceedings. If a trial court uses audio or video recording equipment for making the record of court proceedings, it shall use only recording equipment that meet the standards as published by the State Court Administrative Office (i.e., the Standards for Digital Video Recording Systems, the Standards for Digital Audio Recording Systems), or analog equipment that the State Court Administrative Office has approved for use.
(B) Operating Standards. Trial courts that use audio or video recording equipment, whether digital or analog, must adhere to the audio and video recording operating standards published by the State Court Administrative Office.
(C) Other Recordings. On motion of an attorney or of a party appearing on his or her own behalf, a court may permit audio recording of a part or all of a proceeding and may permit photographic recording of visual exhibits. The court may regulate the manner of audio or photographic recording so that it does not disrupt the proceeding. An audio or photographic recording made under this rule may be used solely to assist in the prosecution or defense during the proceeding recorded; it may not be used publicly.