Role of the Clerk During the Hearing

Most tribal courts use a tape recording or other digital recording device during hearings. The clerk turns on the tape recorder just prior to the beginning of the proceedings as indicated by the Presiding Judge. Once the recording has begun, the clerk announces that the tape is on. Keeping a written record of the counter and at what point on the counter that different people speak is critical if a tape recording is used. The counter is used to indicate various events in the hearing, such as where a complaint was made regarding procedure or at what number the decision was stated.

Usually clerks take notes by hand or computer during the hearing to try to catch all of the elements of the court hearing. This is done whether there is a tape recording or not, but it is essential if there is no tape recording as it will be the only record of the hearing. The clerk needs to keep track of who speaks and at least the main content of what is said, if not verbatim (word-for-word).

The clerk needs to monitor the recording device during the hearing to be sure that it continues to be in working order and that the tape is still running. If the tape stops, the clerk should stop the proceedings and change tapes. Once the recording device is back on, the clerk indicated to the judges that the proceedings may continue. Each person should introduce themselves for the court record for the purpose of voice recognition so that they can be identified if the tape is transcribed or listened to at a later date. All persons present in the courtroom or on teleconference should be listed by full name and any common nickname if they are used during the hearing. Along with the name, the relationship of that person to the court case, such as judge, clerk, parent, grandparent, advocate, etc. should be noted. It is important to describe this relationship because often in tribal settings there are multiple ways that someone may be involved in a court hearing and it needs to be clear as to what their role in the courtroom is for each particular case.

Clerks have varying degrees of duties during the hearing. Some clerks take care of the tape recording and notes, but do not do much speaking aside from stating how parties were notified and on other clerk related matters. Some tribal courts use the tribal court clerk as the court spokesperson, to ask for the names of the persons in the courtroom, read the rights of the parties and expectations for the participants, or to generally run the process at the direction of the judges.

In any tribal court setting the clerk is likely the person to state how and when the parties were notified and if there was any communication from them regarding the proceedings if a party is not present. This is stated on the record for purposes of recording whether due process by Notice was given to all parties. After the clerk states the facts of Notice, the judges determine whether Notice rights have been met according to tribal law. If it determined that proper Notice was given, the judges will then decide whether the proceedings will continue or be postponed until the parties are in the courtroom. If the proceedings are postponed, the clerk should open the court calendar and help the judges determine a new date and time for the hearing, and place it on the court calendar.

When a hearing is postponed or recessed, rescheduled dates and times may be given orally in the courtroom by a judge stating something like “this is oral Notice to all parties present that the date and time of the next hearing is _____. No written Notice will follow.” It is important for the clerk to note that in the record, and to follow up with a Notice to any party missing from the proceeding. Often these postponements do not have the same time constraints as originally scheduled hearings and may take place soon according to tribal law, such as the following day. So, it is imperative that the tribal court clerk to contact any missing party as soon as possible once the hearing is adjourned or recessed.

The clerk may be responsible for asking persons to take an oath of truthfulness, or for stating at the beginning of the hearing that all persons speaking to the court are expected to be truthful in their statements. It may be the judge’s responsibility in that particular courtroom. Each court has its own way of dealing with the expectation of truthfulness when in a judicial setting, and this is often are reflection of tradition and custom.

Generally the judges confer in private to deliberate on the outcome of a hearing once they have heard all of the evidence and heard from all of the parties present. The clerk is often in the same room as the rest of the participants during this time and must not make any comments about the proceedings. Once the decision is made, the judges call the participants back to deliver the decision. The clerk records the decision in detail, making a note of the recorder number on the recording device so that is easy to find on the audio recording when drafting the orders.