Virginia General District Court and Juvenile & Domestic Relations Court are courts not of record, where the court does not provide any system for recording the courtroom proceedings. That leaves one or more parties the option of hiring a court reporter (Va. S. Ct. R. 7A;4) or asking the court’s leave to audio-record proceedings (Va. Code § 16.1-69.35:2).

Hiring an official court reporter is a superior method to record proceedings than using an audio device. The court reporter’s transcript generally will be deemed authentic, accurate, and complete for subsequent proceedings, but that is not the same case with audio recordings. Recording by audio is less expensive at the front end, of course.

In this day and age of quality and relatively inexpensive recording devices, Virginia should join the 21st century by having its District Courts record their proceedings. Until that day comes, I will bring a court reporter or my audio recorder, depending on the situation. Benefits of recording proceedings include preserving testimony that will be helpful for future proceedings to lock in helpful testimony from opposing witnesses and to cross examine on later inconsistent testimony. Moreover, when people know they are being recorded, they will behave accordingly.

Recording Virginia District Court proceedings is not without its disadvantages, though, as convicted rape defendant Charles Albert Massey, III, learned the hard way. Massey had a District Court preliminary hearing challenging whether probable cause existed to believe that he had committed the alleged crimes of abduction and rape of the same alleged victim. Massey v. Virginia, ___ Va. App. ___ (Dec. 13, 2016).

Massey’s preliminary hearing was recorded by a court reporter, whichever side hired the court reporter. At preliminary hearings and motions hearings, criminal defense lawyers often are wise to ask many open-ended cross-examinationquestions in order to obtain information needed to argue the hearing. That stands in stark contrast to trials, where the lawyer typically wants to ask leading questions of the opposing witness unless an open-ended question will not be damaging.

What happens, though, when a criminal defense lawyer asks a slew of open-ended questions of an alleged Virginia felony victim at the preliminary hearing, and the complainant then dies or otherwise becomes unavailable to testify at trial?

Massey’s alleged victim died after testifying at the preliminary hearing but before the trial. Massey’s efforts to keep out her testimony from trial were denied right through the Virginia Court of Appeals’ affirmance of his conviction, seeing that his lawyer had an opportunity to cross-examine her at the preliminary hearing, even though the preliminary hearing judge limited the scope of that cross examination.

Hindsight is twenty-twenty. Had Massey’s preliminary hearing never been recorded, he would likely not have been convicted.

Ho many times is an alleged crime victim going to become unavailable to testify at trial after testifying at the preliminary hearing? That likely will be a small minority of occasions.

When the trial judge will allow an unavailable prosecution witness’s past testimony to be read to the jury, I can always point out that the jury did not have the chance to eyeball the witness, to assess the witness’s credibility through manner of speaking, eye contact, tone of voice, body position, and body language. However, my first preference is to exclude the past testimony in the first place.

All of this talk, though, gives no solace to Charles Massey, who at least now gets another shot to seek appellate relief, by arguing for leave to appeal in the Commonwealth’s Supreme Court.