*1 Petitioner, MAGILL, D. Glenn MILLER, Special Dis-
Bruno Coun- Court Oklahoma trict ty, Respondent.
No. A-15297. Appeals of Oklahoma. Criminal 11, 1969.
June
716 prose-
stricted his cross-examination of the
cutrix;
are
that
rules of evidence
applied
preliminary
rigidly
at his
being
that
hearing;
magistrate
abused
denying
in
him the
discretion
testimony
tape
to record the
use a
recorder
only.
He contends therein
for his
use
previous rulings of this
that
because
magistrates
of the
Court and as
result
restrictions,
placed
jeopardy
in
he would be
against
having
parte
of
ex
affidavits used
trial,
any
in
of the
him in his
the event
at that time.
witnesses became unavailable
position
this
he relies on In
support
In
of
Bishop, Okl.Cr.,
(1968).
re
the for the defense forum counsel the magistrate permits event the investigation former duct his of witness’ privilege using the exercise of the of counsel, by life. That to be conducted is alone, clearly it recording device should proceed- or representative, his outside the recording only that such is understood and, examination; ings preliminary of the the of the and benefit defendant shall not ques- whether or not such informational record; be considered an and official such clearly proper tions are the dis- within appear should in the understanding official examining magistrate. cretion of the magis of examining record or minutes the complaint that he Concerning petitioner’s Further, being trate. if a record is made testimony permitted was record the not by reporter, the recording court accused’s use, actually little harm his own shall to challenge used the official therefrom, which would result but consider it by record after has been verified the device, the electronic recording use of an parties and filed district with the court stenographer, to the without a left to be clerk, magistrate. Likewise, by the the ex magistrate. discretion the observe of We privilege the subject ercise of ac to the part, provides that 22 258 Okl.St.Ann. § physical tual at the conditions existent time as follows: place preliminary and where the examina “* * * request the the On [district being tion is held. defendant, the all the testi- attorney], or necessary not consider it We do dis- in the mony writing must be reduced to petitioner’s specified cuss each of com- questions and form of and answers plaints, through and g.” listed itemized “a. witness, may signed by the or the same they are all insofar as related to the main be taken in shorthand and transcribed question concerning evidence, the rules of signing, and in both cases filed accused cross- restricted court, by with clerk the district examination the witnesses. ** examining magistrate, opinion, We are therefore of the that the (emphasis added) rigidly rules evidence should ap- not be State, P. Davis 15 177 Okl.Cr. plied during the preliminary examination (1919), held: accused; materiality that the may take The law not designating who questions counsel, propounded by as related shorthand evidence of witness to the proceeding, issues involved in the trial, any stenographer examining an left to the discretion of the examining may so. do magistrate; any that contention of the however, decision when that We observe by abuse examining discretion devices the use of electronic was rendered magistrate is a matter considered on to be unknown; testimony and when the was appeal Court; finally, before this by it stenographer, was was transcribed whether not the permit- or accused to be filing by stenographer for verified ted to utilize a recording device to tran- magistrate. examining testimony scribe aof ex- provides as the now is a matter left Insofar State amination to the discretion reporters purpose examining magistrate, official court unless such qualified Attorney objected District recording supplemented by a sistant transcribing recording capable defense counsel stenographer statutes, and with machine and testimony, provided in his own judge verifying transcript thereof. benefit. The sustained or question whether objection. The cer- merit to is considerable While there the ma- defense counsel was entitled to use hereto, Nix’s dissent aspects tain chine us for the first time. is before he reference to which makes the instances recording devices is —wherein the use of Bussey, opin- their Judges Brett and he example gives exer- —each ion, privilege hold it to be a and not court, supervision cised under right, and be left to discretion should reporter. including If that of court support- holding This is not of the court. counsel has be said by any authority precedent ed law. *4 into courtroom bring tape a recorder the However, they say opinion: in their magistrates permis- —with or the petitioner’s complaint that “Concerning be, right next will the declared sion—then permitted he was to record testi- not bring his own movie that he is to use, actually mony for his own photo- video-tape apparatus or to camera little harm which would result there- substance, what graph proceedings. from, an but consider use of elec- true, long as it is saying so Nix is is recording stenog- tronic a device without and supervision au- maintained under rapher, left to be to discretion of thority of the Court. magistrate.” understanding, Referring his lack to bewilderment, stenogra- concerning or opinion Your writer is of the that counsel’s stenogra- believe the pher requirement, we recording use a in the court- machine to necessary the Statute pher under just taking a room is the same as right any subsequent certification your secretary vide having notes or own take re- court testimony, when no transcribed down at a where coun- function of porter present. It is not the involved, they especially sel is where have provi- status, Statutes read into to no is for official but counsel’s own not there the nature sions which benefit. 258 of Title 22 If Section amendment. This writer is further bewildered as to of de- to amended to include recording awhy device used defendant devices, it recording use fense counsel to supplemented by stenographer. a must be provision. Legislature to make all, After it’s his own use and benefit notwithstanding my col- Therefore, only, Why no and has official status. prayed for is de- dissent, the
league’s Writ required should he stenogra- to have nied. pher present during hearing? It necessary would be stenogra- take the BUSSEY, J., concurs. pher office hire from the one sit and watch the machine work. NIX, J., dissents. day recording Modern quite devices are
NIX, Judge (dissenting): inconspicuous way and in no or manner in- orderly terfere opinion process with the a hear- dissent to respectfully I ing. fact, it re- As a as matter of the official Bussey, as far re- and Brett Judges porters, instances, in- recording most use and Six. Syllabus Five lates brought to device. I could understand such a holding counsel case, the defense stant years ago, but testimo- with modern scientific record tape recorder court recording development creating pushbutton society, The witnesses. ny various recording longer no bene- devices attract own atten- for his be used towas machine tion curiosity The As- or arouse the record. witnesses to official an fit and opportunity nied the making the decorum interfering with the extent of recording. majority opinion The admitted the court. no harm would come of it—. I960, on elec- has relied Alaska Since Your says writer provide all records of since no harm recordings to could tronic Now, it, come of it and since has no trial courts. official sta- proceedings its tus, Illinois, an and it experimenting with since does not interfere with State recording decorum hearing, and it method since would more accurate even help a court be of much the defendant and absence proceedings court only, own use and benefit it should be reporter Video-taping. — permitted as right. a matter of un- operated system can be Video-taping require an elabo- obtrusively and does Two courtroom. setup
rate studio
cameras, the size of volume about hidden can be Jurisprudence,
American wall out of placed on the
completely, are these spectators, and line of vision of procedure tape the entire
cameras a trial vi- operated monitored
all from square. four feet control console about sion *5 CONASTER, Error, David Plaintiff in 55, May, Journal, American Bar Vol. Madden, M. page William 457. Oklahoma, The STATE of Defend- video- the first court with who conducted ant in Error. taping, said: No. A-14399. comment that “There been some has better videotape good’. is ‘too For Appeals record Criminal Oklahoma. worse, however, pre- the record is or for April 30, 1969. defy way misin- served terpretation question, response, com-
ment or demonstration. Comments meaning pre-
gestures pregnant with and are not
served intact for review sterile, type- by reducing them to
aborted report proceed- in a
written
ings.” course, upon the
This, bearing has no discussed, only recited
question herein but prog- purpose emphasizing preserving
ress made
ceedings. it could be can understand how readily
I
very the tes- beneficial to counsel to record
timony hearing, play at a time, and thor-
it over from time recording when
oughly familiar with said trial, being better thereby
it comes time for rights.
prepared to defend his client’s privilege majority opinion says it’s a
The and leaves it the discre-
and not a done in the of the court. That was
tion de- counsel was
instant case