Judge Posner Explains Oral Argument Do-Over in Terrorism Case

June 16th, 2014

The 7th Circuit released its opinion in USA v. Adel Daoud, a case most known for its oral argument do-over. In an introductory footnote, Judge Posner explains the circumstances of the two arguments:

* The fact that we heard oral argument twice before issuing our decision is unusual and requires explanation. By inadvertence the device that makes a sound recording of the oral arguments of our cases was not turned on for the public argument in this case on June 4. (That argument was followed by a classified argument, which was recorded stenographically by a court reporter who has the necessary security clearance. Our present opinion pertains only to the public argument.) Recording, whether aural or stenographic, of oral arguments is not required by law; and the recordings are not required to be made public. Until our recording equipment was installed some years ago, no record was made by the court of the oral arguments. And initially the recordings were available only to the judges. Eventually the court decided to make them available to the public as well. Although under no legal obligation to conduct a second oral argument in this case, we decided to do so because the accidental failure to record the argument occurred in a high-profile case involving serious criminal charges.

There you have it. The Supreme Court has taken a similar position–there is no legal requirement to record audio, so any audio released is at the grace of the court.