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.

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.

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!

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.

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Protection Order Petitions & Hearings-What to Do & What Not to Do

During my time as a law clerk for the Second Circuit in Sioux Falls, I had the opportunity to read many protection order files and to observe many protection order hearings. What struck me most about those cases is the vast number in which the parties were pro se (not represented by an attorney, but rather representing themselves). Therefore, I must begin this post by reminding people, and encouraging them, to hire an attorney to represent them in protection order cases. That being said, this entry is designed to provide guidance to attorneys and pro se litigants alike as to how to draft the most effective protection order petition possible, as well as how to handle the protection order hearing. However, I in no way mean to suggest any kind of guarantee of success. Protection order cases are intensely fact specific and depend a great deal upon the credibility of the witnesses at the hearing.

Tip #1: Keep it simple.

The judge does not need the entire life story between the parties and their families and friends. The judge does not need a transcript of conversations that you had with your family and friends about the respondent. The judge needs the facts about what occurred and when. Judges are exceedingly busy people, and typically have several protection order files to read, and several protection order hearings scheduled in a block. Therefore, it is in the best interests of a petitioner to be succinct and clear in making his/her point.

Tip #2: Use names and relationships to make the petition clear.

Use the names of the petitioner, respondent, and other individuals if it will make the petition easier to understand; if the names & relationships won't make it easier to understand, leave them out. However, do not assume that the court understands the relationships between the parties. Make sure that you explain relationships (mother, father, friend, daughter, cousin, brother, etc.) where necessary. However, do not forget tip #1 to keep it simple. If a person or relationship is not necessary to understanding the what occurred and when, leave it out.

Tip #3: If there are physical injuries, include pictures.

A picture says a thousand words. If there are bruises, cuts, stitches, etc. include pictures in the petition. The judge will look at them.

Tip #4: Read & follow instructions.

There are instructions that accompany the protection order petition. Read them and follow them. Read the questions on the petition form carefully and answer the question asked.

Tip #5: Realize that a police officer's recommendation that you file a protection order is not dispositive.

Police officers frequently recommend that individuals seek protection orders if they are fearful. Judges do not give this recommendation much, if any consideration. The recommendation is made by police officers frequently, and certainly does not mean that the elements for granting a protection order have been met.

Tip #6: Dress appropriately for the hearing.

Appropriate dress in a courtroom does not include jeans, t-shirts, tennis shoes, revealing clothing, or work attire. Parties certainly are not required to wear a suit to court, but a pair of dress pants and a button down or polo shirt for men, and a skirt/pants with a nice blouse or a dress for women are appropriate. Although a judge will hear your case impartially no matter what you wear, attire certainly is considered, even if subconsciously, in determining credibility. Do your best to look presentable in court.

Tip #7: Be on time.

Do not be late for a hearing. Showing up early for a hearing is acceptable and even encouraged. In fact, depending on how the particular circuit handles protection order cases, it may even give you an opportunity to observe the judge and the procedure for handling protection order cases.

Tip #8: Ensure that the court makes adequate findings and conclusions on the record.

The South Dakota Supreme Court decided Shroyer v. Fanning, 2010 SD 22, this year. The case makes clear that findings of fact are required, because no review is possible in the absence of adequate findings.

Tip #9: File responsive affidavits.

If you are a respondent or if you represent a respondent on a protection order, it is a good idea to file a responsive affidavit. In most cases, the judge or the judge's law clerk reads the protection order file before going on the bench for protection order hearings. It certainly does not hurt the respondent's case for the judge to hear from both sides before going on the bench. Responsive affidavits paint a vastly different picture than if the judge only has the petition to work from.

Tip #10: Be informed about protection orders.

Protection orders are granted pursuant to statute in South Dakota. Look to Chapter 25-10 for domestic abuse protection orders and Chapter 22-19A for stalking protection orders for requirements. Information regarding both domestic abuse and stalking protection orders can also be found on the South Dakota Unified Judicial System website.

Tip #11: Don't be afraid to file.

In addition to the above information, there are also resources available to assist people who are being stalked or abused. Don't be afraid to file a protection order because you are afraid to go to court or cannot afford to hire an attorney. There are resources available who are familiar with protection order procedure and can take protection order cases for low cost or no cost. Consider contacting resources such as these in Rapid City: Working Against Violence, Inc. or Sacred Circle. Consider contacting resources such as these in Sioux Falls: Children's Inn or The Compass Center. Also consider contacting an attorney to assist you.

Expungement in South Dakota

During the 2010 South Dakota legislative session, a bill (HB 1105) providing for expungement was passed and signed into law. That law has since been codified at S.D.C.L. 23A-3-26 through 23A-3-33. The law is clear that expungement, as provided for in South Dakota, merely seals records and does not actually destroy physical records. Sealing of records means that those records may only be accessed by order of the court. Individuals may seek expungement of arrests occurring at any time before or after the statutes' effective date of July 1, 2010. There is no statute of limitations on expungement of arrests.

The new law provides for expungement of arrest records after one year from the date of the arrest if the State has not filed an information or indictment. Arrest records may also be expunged at any time after an acquittal. Although not specifically addressed in the statutes, it appears that upon granting a motion for expungement, any and all court records may also expunged. I come to this conclusion, as 23A-3-32 makes clear that the purpose of the statutes is to restore "a defendant or arrested person" "to the status the person occupied before the person's arrest or indictment or information." However, guidance from the State Court Administrator, as published in the July 2010 issue of the State Bar newsletter states that, "[t]he motion and any proposed order should clearly identify the records sought to be expunged." Therefore, if an individual would also like the court records sealed, the motion must so state.

Motions for expungement are treated as civil filings, and begin a new civil case. Therefore, civil filing fees and a civil case filing statement are required. Guidance, as to how expungement motions are to be captioned, was also provided in that same issue of the State Bar newsletter. Motions for expungement are to be served upon the prosecuting attorney who prosecuted the crime or violation, or who had authority to prosecute the charge if there was no information or indictment filed.

What is truly interesting about the expungement provisions in South Dakota's law is that individuals are no longer required to disclose arrests, informations, or indictments after those records have been expunged. S.D.C.L. 23A-3-32 specifically states that, "[n]o person as to whom an order of expungement has been entered shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement by reason of the person's failure to recite or acknowledge the person's arrest, indictment or information, or trial in response to any inquiry made of the person for any purpose."