The issue presented in this case is whether a judge erred in denying a documentary film maker’s motion for access to an audiotape “room recording” of a trial made by a court reporter where an official transcript of the trial had been prepared and provided to the film maker. We conclude that, where the court reporter’s room recording is not the official record of the
Background. In 2007, in the underlying case, a Superior Court jury convicted Keith Winfield of two counts of forcible rape of a child under the age of sixteen, indecent assault and battery of a child under the age of fourteen, and assault and battery of a child causing serious bodily injury. The Appeals Court affirmed the convictions. Commonwealth v. Winfield,
The court reporter at trial was a “voice writer,” who created a “voice-over recording” by repeating all that was said at trial into a tape recorder using a specially designed mask. She later prepared an official transcript of the trial from the voice-over recording she had made. The court reporter also made a separate audio room recording of the trial, apparently as a backup to the voice-over recording, that presumably captured all that was said at trial, including inflections, nuances, and pauses.
Audette purchased a copy of the trial transcript from the court reporter and also requested a copy of the court reporter’s room recording. The court reporter informed Audette that she would not provide him with a copy of the room recording unless directed to do so by the court.
Audette filed a motion asking for an order directing the court reporter to provide him with a copy of the room recording of the trial on payment of the reasonable cost of copying the audiotape, and served it on the Commonwealth’s and Winfield’s counsel. Audette’s motion claimed that access to the audio recording should be allowed pursuant to the right of access guaranteed by
After a thorough review of the various statutes and court rules governing court reporters and transcripts, as well as the Report of the Supreme Judicial Court’s Study Committee on Trial Transcripts (2003) (Study Committee Report), the motion judge (who was not the trial judge) denied the motion.
Discussion. “The First Amendment implicitly grants the public, including the press, a right of access to court trials.” Commonwealth v. Cohen (No. 1),
The First Amendment right of access to court trials includes the right to purchase a transcript of the court proceeding that was open to the public. See Press-Enterprise Co. v. Superior Court,
Our statutes, rules, and standing orders ensure that there is an official record of a criminal trial that may be made available to anyone who wishes to learn what transpired. In the Superior Court, where the defendant was tried, a record of a criminal proceeding is made by a court reporter, where one is available. Standing Order 2-87 of the Superior Court, Mass. Ann. Laws Court Rules, at 1075 (LexisNexis 2012-2013). A court reporter is a “shorthand reporter or voice reporter” who is a sworn
“Historically, court reporters penned shorthand notes of court proceedings on paper, which they later transcribed with a typewriter.” Study Committee Report, supra at 14. Today, there are two types of court reporters: stenotypists and voice writers. Id. A stenotypist makes a record of court proceedings through the use of a stenotype machine that records a series of strokes indicating shorthand phonetic symbols, and “later prepares a transcript from the raw stenotype machine notes.” Id. at 15. A voice writer dictates the proceedings into a tape recorder while wearing a specially designed mask, and later prepares a transcript from the dictated tape recording. Id. at 14-15. Neither a stenotypist nor a voice writer is obliged to make a room recording of court proceedings, but the court reporter in this case chose to do so, apparently to serve as a backup to her voice recording and to ensure the accuracy of her transcript. “[Cjourt reporters purchase, own, and maintain their own equipment (both for in-court recording and at-home transcribing),” id. at 17-18, so we presume that the court reporter in this case used her own tape recorder to make the room recording. The transcript she prepared, not the room recording, was the official record of the trial, and the room recording was kept in her custody, not placed in the court file.
Where a court reporter is not available in a Superior Court trial or hearing, a verbatim record of the proceeding is made with an electronic recording device operated by the session clerk or another employee designated by the clerk-magistrate, and a copy of the original recording is available to anyone for a fee on request, unless the proceeding was closed to the public or the recording has been impounded. Standing Order 2-87 of
Audette contends that his First Amendment right of access to the trial and to the trial transcript also includes a right of access to the room recording made by the court reporter. If Audette had attended the trial, he would have had no constitutional right to make an audio recording of the trial. “[T]here is no constitutional right to bring cameras into or to make audio or video recordings of court room proceedings.” Commonwealth v. Barnes,
Audette also contends that the room recording is a judicial record, and that he is entitled to a copy under our long recognized common-law right of access to judicial records. New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business,
The presumption of public access, however, applies only if the room recording is a judicial record. See Rosado, supra at 37 (“when determining whether a document should be open to the public, the threshold question under the common law is whether the document constitutes a ‘judicial document’ ”); Commonwealth v. Upshur,
Where a document or recording is kept in the court file, it is a judicial document under our case law that is accessible to the public unless impounded. For example, in Globe Newspaper Co., supra at 123, we concluded that the common-law presumption of public access applied to an inquest report once it was filed in the Superior Court. Similarly, in New England Internet Café, supra at 83, citing Republican Co., supra at 222-223, we recognized that a search warrant affidavit becomes a presumptively public document only after the warrant is returned because the affidavit is filed in the court with the return. See Newspapers of New England, Inc., supra at 631. See also Leucadia, Inc. v. Applied Extrusion Techs., Inc.,
A certified transcript of a criminal proceeding is filed with the court and is presumptively a public document. See New England Internet Café, supra. Where an electronic recording of
While a backup room recording is not filed with the court, it is nonetheless the property of the court. See Superior Court Regulations Governing Court Reporters § 25, at 15 (1973) (“All stenotype tapes, tape recordings and original shorthand notebooks containing any notes of the trial or hearing of a case shall be the property of the court”). Therefore, a judge has the authority to order the court reporter to provide designated persons with access to the room recording, for instance where the court reporter has failed timely to prepare a transcript or where the recording may be needed to resolve a dispute regarding the accuracy of the transcript.
We need not determine whether the presumption of public access could ever apply to a document or recording that is the property of the court but is not found or referenced in the court file.
In reaching this determination, we look to whether a record
Our conclusion that the backup room recording in this case is not a judicial document entitled to the presumption of public access does not mean that a member of the public may not request access to the recording. It merely means that, in considering such a motion, the burden is not on the opponent of the motion to overcome the presumption of public access by showing good cause to impound the presumptively public recording. See Globe Newspaper Co., supra at 121, citing Republican Co., supra at 223 & n.8 (“Although the [Ujniform [RJules [of Impoundment Procedure] do not claim to govern impoundment in criminal cases, ... we have applied the good cause standard to the impoundment of documents filed in criminal cases”). Rather, the burden rests with the proponent of the motion to show why the interests of justice would be served by making a document that is not presumptively public available to the public in this particular case. We review the judge’s decision for abuse of discretion. Commonwealth v. Powell,
Here, the judge found that the room recording was not a judicial record but also found that, even if it were, and even if the Commonwealth needed to show good cause to impound the recording, the Commonwealth had met that burden. In so finding, the judge recognized that she “must take into account all
Audette claims that the judge abused her discretion in finding good cause without conducting an evidentiary hearing at which she would hear directly from the victim and her family. If the room recording were a presumptively public judicial document where the burden of proving good cause rested with the Commonwealth, we might agree that the Commonwealth’s prediction of disruption to the peace of mind of the victim and her family would be inadequate alone to support a finding of good cause to impound the document. See Republican Co., supra at 223, quoting Commonwealth v. Blondin,
In deciding whether the judge abused her discretion in finding that the interests of justice would not be served by providing Audette with a copy of the room recording, we are persuaded that the extraordinary facts of this case provide support for the Commonwealth’s prediction of disruption to the peace of mind of the victim and her family. The two-year-old victim in this case suffered second- and third-degree bums to her genitals and anus, as well as a large skull fracture on the back of her head, with bleeding at that location around her brain. Commonwealth v. Winfield,
We conclude that the judge did not abuse her discretion in weighing the risk of emotional distress to the victim and her family against Audette’s interest in using the witnesses’ actual voices in his documentary film and finding, in essence, that the interests of justice would not be served by giving Audette access to the room recording of the testimony at trial. Where
Finally, we address Audette’s argument, made for the first time in his appellate reply brief, that the judge’s denial of his motion for access must be reversed because it constitutes an unconstitutional prior restraint. By not raising this argument in his motion, and not raising it in his initial appellate brief, Au-dette has waived the argument. See Police Dep’t of Salem v. Sullivan,
Conclusion. We affirm the judge’s order denying Audette’s
So ordered.
Notes
The trial judge had retired before the motion was filed.
“[T]he determination must satisfy four requirements articulated by the [United States] Supreme Court: ‘[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.’ ” Commonwealth v. Martin,
Nor would Audette be entitled to make an audio recording of the trial under the rules of the Superior Court, which require prior judicial authorization before anyone may use a recording device in a court room. Rule 17 of the Rules of the Superior Court (2012). Our recently amended S.J.C. Rule 1:19, as amended,
We note that, in Commonwealth v. Silva,
We note that Steve Audette argued on appeal that he needs the room recording for his documentary film because the transcript reported only what the trial judge said in response to a disturbance in the court room that occurred after the jury announced the guilty verdicts, and did not reflect the nature, source, or details of the disturbance. Audette, however, did not make this argument to the motion judge when he sought access to the room recording, and the judge consequently did not address it. We take no position as to whether Audette would have good cause to obtain access to that portion of the tape recording that reflected the immediate aftermath of the jury’s announcement of their verdicts.