In his lectures, Eric Kandel describes in detail the scientific fact that an artwork and with it everything else one sees, hears or reads, gets a completely different meaning than the artist, the writer or the narrator intended to. In art only the observation of the observer leads the art to the artwork.
With that said it is a scientific fact, which was proven by countless experiments, that there cannot be an unbiased protocol.
In the USA this has been taken for granted for at least 100 years, stenography machines have existed very early in order to write down every word in a courtroom. In Austria, every trial, as well as criminal procedure, is an unbearable patchwork.
Judges do not concentrate on the progress of the trial and what serves as part of the public trial as the foundation of reaching a verdict in Austria, but think about what of the said they will transcript as court proceedings, they make quick notes at best during the testimony instead of concentrating on the testimonies of the party/the witnesses, they make a selection of what they note and dictate, they ask leading questions, they partly even transcript the answers before the witness or the party even responded, because the answer already lies in the leading question.
So if this is tested, one lets an audio file run and then lets it be written, then this audio files are compared to the judicial protocol, then these are two different trials, which can be congruent on some parts but other than that could not be more contrasting.
The legitimate résumé protocol, which is the summarizing transcript of court proceedings, is simply the perversion of what a transcript of court proceedings is supposed to be.
In times in which every mobile phone has a record function, a dictation of what a judge has heard is only a fragmentary rendition of the whole thing. The judge is often dictating quietly so one cannot hear it, and nobody in the hearing room can concentrate on anything. Because what is one supposed to concentrate on? On what is happening? On what the judge is dictating? In the USA, where not everything is great for sure, it is taken for granted that at a trial every word is written down automatically and not only a selection of what was said. No American judge hits on the idea of listening so something first and then dictate. Every trial in Austria takes twice as long as necessary because the judge does not start to transcript as court proceedings until after the party/witness has made his/her testimony or part of it.
In former times a law intern had knowledge of stenography, and in theory at trials the secretary (court reporter) had the same, that was the law intern, or a typist, who was supposed to write down every word. Of course this did not work and a mutilated transcript as court proceedings was the result.
Nowadays many people have compulsory judicial experience because of divorce decrees and alimony problems, and if one has experienced how interviews and transcript as court proceedings are executed, it leaves a deep ditch and a completely loss of trust in the persons involved in the trial.
In Austria, the jurisprudence is a total dead loss and simply a paid gossip association for politics and jurisdiction. Judges partly function in the jurisprudence, which is an Austrian and German idiosyncrasy, whereby no control of jurisdiction is left at all but everything is rather intertwined, which is supposedly an Austrian tradition - a folk custom, as in North Korea or China or maybe among Putin, but has nothing to do with a democratic standard.
When Austrian voters are asked nowadays then they are not protest voters anymore but they either do not vote, or they vote white, or they are angry with themselves because they have given up, and in an extreme case they just vote anything as a result.
When one wants to do something democratically and when everyone takes the democracy seriously, then it is the first step, which does not need money and not even an legislation amendment, so that the judiciary says: "we let audio files run and then they should be written." One would thus save a lot of time and above all one would then have correct transcript as court proceedings content-wise.
However, the current practice is ridiculous with the variety of possibility. Every judge can use three phones, he lays one next to him, one next to the witness, next to a party, etc., and every word would be recorded and the judge would be able to concentrate on the trial in a relaxed and free manner. With this, an essential step would have been taken in order to restore the trust in the jurisdiction and thereby in the community. And not for example that governor Voves, who is presumed innocent, is suspected to have stolen 1 million Euro from demand allocations for communities, is terrible because we are not even upset since we have already given up.
It is a fact that in diverse lawsuits psychiatrists are present as an expert witness. Every psychiatrist knows that the summarized transcript as court proceedings is psychiatric nonsense if one wants to view this summarized transcript as court proceedings objectively and impartially. And nevertheless every psychiatrist keeps quiet about this "judicial normal condition" and it is, just as the jurisprudence, only lubricant for the system.
If one then wonders why people slip into drug addiction, depressions, anxiety states and helplessness, when such a foundation of a healthy coexistence keeps going unnoticed and the psychiatrists do not take responsibility and do not say: "Excuse me Your Honor, the unbiased transcript as court proceedings your are dictating, is medical and scientific nonsense. It does not exist and it cannot exist."
This so called protocol practice is not contemporary let alone expedient. Why this is not and has not been necessary in the USA for 100 years is explained by the distinction that in the USA, as opposed to Austria, there is a legal system which does not have its roots in monarchy or the dictatorship of the Nazi empire. Here a clear commitment will be necessary, if in Austria one really wants a legal system where the judge does not say:"Excuse me, do not come back to me with a violation of the right for fair trials, as we are in the state court for the regional civil court... " Here it requires a clear commitment of all - judges, lawyers, mandataries - to say that we want a legal system which roots in a democracy and not in the dictatorship of a monarchy, because the emperors were no kind, nice and friendly people; they were dictators who called the shots.
The other roots are simply the Third Reich and that was not particularly democratic either. If one then takes the Roman Law, even the Roman Law knew slaves and is far from what is referred to as democracy in Switzerland and the USA, and what people are dreaming of in Austria, but keep mistaking it for McDonalds.
Thousands of Austrian, German and other European students study jurisprudence in the USA: For whatever reasons these basic democratic necessities are not brought over but nothing but worthless special knowledge, which one can maybe use to earn money, but not to serve the community.
Bernadette Wukounig/ Mirjan Maier