Monday, September 20, 2010

What To Do (& Not Do) When Speaking for Court Reporters

During my clerkship in Sioux Falls, I took on a part-time job working with a court reporting program. My primary job duty consisted of dictating materials for court-reporting students to take down on their stenography machines. In addition to my official job duties, I considered the part-time job to be a valuable learning tool for myself to learn how to best speak so that the court reporters I come across in my career can make a solid record. I had no experience with court reporting prior to that part-time job, but certainly now know a whole lot about court reporters' preferences. So, as most people are not fortunate enough to get the opportunity to hear straight from the court reporter's mouth, I thought I'd pass along those pointers that I learned from my time working in a court reporting program. These apply pointers apply to attorneys and to witnesses.

#1: Speak slowly.
Most people speak too quickly, especially when they are nervous. People are more likely to be nervous when in court or in a deposition, and this is when court reporters are trying to take down every word that you say. Therefore, if you would like the court reporter to take down every word that you say, speak slowly. Chances are that you are probably speaking more quickly than you think, anyway. This rule is even more important if you are using medical terminology or other specialized terms which the court reporter is not likely to encounter very often.

#2: Read even more slowly.
People read much more quickly than they typically speak. If the document that you are reading is important (and it probably is, or you wouldn't bother to read from it), then you should slow down while reading to make sure that the words are on the record.

#3: Spell difficult names & specialized terms of art.
If your name is Smith or Jones, you don't need to spell it. If your name is more complicated, spell it for the court reporter (and don't forget to spell slowly). The same rule holds true for medical terms or other specialized terms. If you would like the transcript of the hearing/deposition/etc. to have correctly spelled words, and those words are not in the lay person's vocabulary, spell them for the court reporter.

#4: Don't go off on tangents.
If the court reporter asks you to repeat something that you have said, do just that--repeat what you said. Do not go off on a tangent explaining the concept or background story to the court reporter. The court reporter was not asking you to repeat yourself because s/he did not understand what you were talking about, but only because s/he did not hear or understand the words that you said.

#5: Do not interrupt or speak over another person.
A court reporter can only take down one speaker at a time. When people talk over one another or interrupt each other, the record becomes muddled and may even be missing some of what was said. Wait until one person has finished speaking before you speak.

#6: Answer out loud, using real words.
Do not nod or shake your head, as a court reporter can only take down verbal responses. Try to minimize mmm-hmm, hmm-mmm, uh-huh, and huh-uh, as these can be taken down by the court reporter but are open to interpretation. Use "yes," "no," and other real word verbal responses.

#7: If the court reporter is marking an exhibit, do not speak.
When the court reporter's hands are off of the machine, s/he cannot take down what is being said. Therefore, when the court reporter is marking an exhibit (i.e. writing on an exhibit sticker and placing that exhibit sticker on a document or other type of exhibit), s/he cannot possibly take down what is being said, and attorneys and parties should not speak at this time.

Tuesday, September 14, 2010

You Have the Right to Remain Silent

"You have the right to remain silent. Anything you say can and will be used against you in a court of law." These words begin those famous warnings that we all know from television cop shows as Miranda warnings. My guess is that most people do not think twice about what these words mean when a police officer has just read their rights to them. This is understandable. When a person is in a situation in which a police officer is reading Miranda warnings, the person is in the custody of the police, may be in handcuffs, may be in the back of a police car or in a small interrogation room of a police station, and likely feels extremely vulnerable and unsure about what is happening. However, this is the time when you need to think about what police officers are telling you and what it means for you. So here is my quick and dirty guide to why you should listen to the police and invoke your right to remain silent.

When the officer is telling you that anything you say can and will be used against you, they mean it. Rules of evidence permit statements made by a criminal defendant to be admitted into evidence, whether the defendant testifies in court or not. Even if the statements do not seem to be harmful to your case, they very likely still may be. When you are being interrogated by the police, you have no idea what other evidence they may have against you. Unless you are an attorney or have done a substantial amount of research into the elements of each individual law, you probably also do not know what the State must prove in order to convict you of a crime.

As Darryl A. Goldberg stated in his 2008 article entitled, Responding to the Middle-of-the-Night Call from an Arrested Acquaintance, "A confession is the most powerful piece of evidence for the prosecution. What you see on TV certainly rings true in almost every case: whatever you say can and will be used against you." Confessions are often the main piece of evidence used to convict a criminal defendant. Keep quiet, do not confess to a crime or make any statements that could be used to prove that you committed a crime, and the State's job of proving you guilty is much more difficult. Moreover, research has shown that even innocent people sometimes make incriminating statements or outright false confessions. See this, this, and this. Don't take the risk that your statement may be interpreted as incriminating or that you may succumb to police pressure.

So how do you make sure that questioning ceases and that you will not continue to be questioned? Simply say: "I do not wish to speak with you. I would like to speak with an attorney right now." This ensures that you have invoked your right to remain silent, and also that the questioning must cease because you have requested an attorney. In addition, you should then speak with a criminal defense attorney as soon as possible, so that the attorney may represent your interests in dealing with police and with the State and ensure that you are not questioned further.

Sunday, September 12, 2010

You (Yes You!) Need A Will, Too.

Recently, my boyfriend became an uncle. His brother and sister-in-law became the proud parents of a beautiful baby boy. That combined with the large number of my friends who have recently gotten married, purchased houses, and begun having children made me start thinking about estate planning. Really, I kid you not, it did.

Many people think that they do not need a will. However, I believe that many of these people have not really thought through the consequences of dying intestate. Ask yourself, do you know how the laws of intestacy will dispose of your property? Have you thought about what dying without a will means for your loved ones in administering your estate? Have you thought about what would happen to your children if you die without a plan for them?

Estate planning is more than just a will telling everyone who gets your "stuff" when you die. It is a plan for who makes decisions about that "stuff." It is a plan for who takes care of your children and makes decisions regarding their welfare when you die. Estate planning can include plans for how you would like your remains handled after you pass away through the inclusion of burial & funeral plans. Estate planning can also include reassurance to your loved ones about your faith in a higher being.

For many though, estate planning also includes decisions about end of life issues through documents such as living wills and powers of attorney. These types of documents allow you to make decisions about medical treatments in the event that you are in a terminal condition and are unable to participate in making those decisions. They also allow you to decide now who is able to make financial and business decisions for you in the event that you are unable to do so.

When you are ready to begin estate planning, you should consult with an attorney. Estate planning attorneys are able to assist you in meeting your goals for end of life care as well as how you would like matters handled after you die. I urge you not to rely on a computer generated will, living will, or power of attorney or to simply "do it yourself." See this and this for problems that can occur from DIY and computer-generated wills. Only through consultation with a competent attorney will you end up with documents which meet your goals and which are in accordance with state law.

So, what are you waiting for? Call your attorney and get your estate plans in order!

Thursday, September 2, 2010

Walk the Line & I Don't Mean Johnny Cash

We've all heard of the field sobriety tests administered by law enforcement after a traffic stop to determine whether a driver is under the influence of alcohol--walk the line, touch your nose with your fingertips, recite the alphabet backwards, count forwards and backwards, etc. Performance on the field sobriety tests can be used by law enforcement to prove that the driver is under the influence, even if the driver is not over the legal limit. Because these tests are designed to provide law enforcement with probable cause and to prove the case that the driver is under the influence of alcohol; and it is, as a result, a really bad idea for drivers to complete the tests whether they have had one drink or many.

Many people think that complying with law enforcement's requests to do these tests is required. But in South Dakota, compliance with field sobriety tests is not required. According to SDCL 32-23-1.2, "Every person operating a vehicle which has been involved in an accident or which is operated in violation of any of the provisions of this chapter shall, at the request of a law enforcement officer, submit to a breath test to be administered by such officer. If such test indicates that such operator has consumed alcohol, the law enforcement officer may require such operator to submit to a chemical test in the manner set forth in this chapter." In layman's terms, this means that drivers must submit to a breath test, also know as a PBT test. If the breath test indicates that the driver has been drinking, the driver may then also be required to submit to a blood test. SDCL 32-23-10 also tells us that by operating a motor vehicle in South Dakota, we have implicitly consented to a test of our blood. Refusal to complete a breath or a blood test can also be admissible as evidence of guilt. See SDCL 32-23-10.1.

Recent research makes clear that lay people, bartenders, doctors, and even police officers are not very good at distinguishing between drunk and sober people. When distinguishing between drunk and sober is difficult for even trained professionals, it is nonsensical to assist police officers in their efforts to find probable cause or prove that you have been drinking when they otherwise may not be able to make such a determination. This is especially true when that same research illustrates that even structured means of assessing the level of intoxication (such as field sobriety tests) may not be terribly effective in truly determining whether someone is under the influence or not.

So what does all of this mean? If you are stopped by law enforcement in South Dakota, here are some handy tips:
(1) Do not participate in field sobriety tests;
(2) Be polite throughout the encounter, especially while refusing to do field sobriety tests;
(3) Do not make statements such as, 'I couldn't do those tests even if I were sober!';
(4) Do agree to a breath or blood test if required to do so.