PROCEDURAL ALERT! Whenever requesting record items, counsel should comply with Rules of Court, rules 8.155(a)(3) (the party must identify the record as required under rules 8.122 [clerk’s transcript items] and 8.130 [reporter’s transcript items]).
When requesting record items found in the clerk’s transcript, counsel must identify each requested document by its title and filing date or, if the filing date is not available, the date it was signed. Minute orders may be requested by date. (See Cal. Rules of Court, rule 8.122(a)(1).) For documentary exhibits admitted into evidence or lodged, counsel must specify the exhibit by number or letter. (See Cal. Rules of Court, rule 8.122(a)(3). But see Cal. Rules of Court, rules 8.224, 8.320(e) [outlining the procedure for transmitting exhibits to the Court of Appeal].) Counsel should note in a motion to augment that the exhibit is a document rather than a physical item. Counsel should also explain why he or she is requesting the item in a motion to augment, rather than following the procedure in rule 8.224 for transmitting exhibits to the Court of Appeal after the respondent’s brief is filed. It is also helpful to include any other information in the record that will assist the Court in identifying the item and ruling on the motion to augment.
When requesting record items found in the reporter’s transcript, counsel must specify the DATE of each proceeding requested (not just volume/page numbers). (See Cal. Rules of Court, rule 8.130(a)(1).) At least one of our superior court county clerks has stated that the failure to include a date for a requested reporter’s transcript may result in return declarations requiring counsel to provide the date. It is also helpful to include the reporter’s name and certification (CRS) number if known, and any other information in the record that will assist the Court in identifying the hearing and ruling on the motion to augment. For example, if counsel determines that a hearing occurred because there is a minute order for the hearing in the clerk’s transcript, counsel should also provide a citation to the minute order when identifying the requested reporter’s transcript.
When moving to augment the record, be sure to explain how the requested materials will be useful on appeal. (See People v. Gaston (1978) 20 Cal.3d 476, 482.)
I. The Checklist Worksheet (to print or download)
II. Counsel’s Duty to Insure There is an Adequate Record
It is counsel’s duty to ensure that there is an adequate record before the appellate court so that contentions may be resolved on the merits. A failure to appreciate or correct a defect in the record may constitute ineffective assistance of counsel on appeal if the failure precludes full consideration and resolution of the issues. (People v. Barton (1978) 21 Cal.3d 513, 520.) The litigant need only establish with some certainty how the materials he requests may be useful to him on appeal. The showing of “some certainty” must be made as to the manner in which the materials may be useful, not as to the contents of the materials themselves. (People v. Gaston (1978) 20 Cal.3d 476, 482-484; People v. Silva (1978) 20 Cal.3d 489, 493.)
III. Augmenting the Record vs. Completing the “Normal” Record
A. Completing the Normal Record in the Trial Court – Rule 8.340(b)
Items which should be included as part of the “normal record” are set forth in California Rules of Court, rule 8.320. When missing normal record items, they can be obtained from the superior court by filing a letter request to the court clerk citing rule 8.340(b) [not 8.324]; cc a copy of this request to the Court of Appeal clerk, all parties, and to CCAP.
Both the Third and the Fifth will automatically toll the due date of an opening brief upon receiving notification pursuant to rule 8.340(a) or a letter pursuant to rule 8.340(b), if the opening brief due date is pending. No separate extension of time request is necessary.
Note however, that when the material to be included in the record is attached to the motion to augment (rule 8.155(a)(2)), the opening brief filing deadline might not be tolled because counsel already possesses the record. In this instance, it is recommended that counsel confirm their deadline with the court clerk.
These two courts do differ on whether a respondent’s or reply brief due date will be suspended or not when an augment motion is filed. (See Procedural Policies comparison chart: “Augments versus rule 8.340(b) filings”.)
California Rules of Court, rule 8.340(b) sets forth the procedure for obtaining missing “normal record” items. See a sample rule 8.340(b) request in our online motions book.
The key to an efficient and productive panel practice is creating templates and checklists to keep you on track and organized. Our Managing Your Practice article discusses this efficiency.
B. Augmenting the Record in the Court of Appeal – Rules 8.155 & 8.340(c)
Under Rules of Court, rule 8.155(a)(1)(A), the record may be augmented with “any document filed or lodged in the case in the superior court.” Usually, a careful review of the clerk’s minutes and/or discussions with trial counsel and appellant alert appellate counsel to the need to augment.
Some commonly augmented items to look for:
- The voir dire examination of jurors – As one example, when an objection to a peremptory challenge has been noted as overruled in the clerk’s minutes, appellate counsel should review the entire record of jury selection. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (“Wheeler“) [the use of peremptory challenges to exclude any group of jurors based on race, religion, ethnicity, or similar grounds, violates the defendant’s state constitutional right to trial by a representative jury]; Batson v. Kentucky (1986) 476 U.S. 79, 89 [also violates the federal equal protection clause].)
- Waiver of jury trial – Even though the clerk’s minutes may indicate a waiver of jury trial, the verbatim transcript of the proceeding is necessary for effective appellate review. (People v. Holmes (1960) 54 Cal.2d 442 [the record must show a personal waiver by the defendant and no waiver may be implied from silence].)
- Opening statements – As one example, it may be necessary to review the opening statements as they relate to a claim of prosecutorial misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1215 [the use of deceptive or reprehensible methods to attempt to persuade a jury constitutes prosecutorial misconduct].)
California Rules of Court, rules 8.155 and 8.340 set forth procedures for augmenting items into the record. Sample motions are available in our online Motions Book.
Also, don’t overlook the simplicity of “augmenting” the record with any document or transcript that you need added to the record. (For example, something you found in trial counsel’s file which has mysteriously disappeared from the court’s file.) A copy of the item must be attached to your motion. (Cal. Rules of Court, rule 8.155(a)(2).) In practice, the court will likely offer the respondent party an opportunity “to comment” on the item. “If the reviewing court grants the motion it may augment the record with the copy.” (Ibid.)
C. Timeliness & Court Policies on Completing and Augmenting the Record
Look at a comparison of the Procedural Policies of the Third vs. Fifth District on completing, supplementing and formally augmenting the record.
If the record is incomplete, the preferred practice of the Third and Fifth is that a motion to augment be filed within the first 30 days of appointment, and before the filing of an extension of time. In the Fifth, appointed counsel must meet the augment deadline set in the appointment order. If counsel cannot do so, an explanation is required when the augment motion or an initial EOT is filed. Press of business is not an acceptable reason.
D. Special Rules on Juvenile Cases
California Rules of Court, rule 8.404 sets forth the provisions regarding the normal and additional record in juvenile cases.
NOTE: Spotted in a recent Fifth District order on a dependency case, where counsel just happened to find something in the superior court file: “When[ever] counsel has the opportunity to review a juvenile dependency superior court file and discovers missing material which counsel believes should be part of the appellate record, counsel is urged to proceed as follows. If at all possible, counsel should obtain a certified copy of such material and submit it to this court, along with a motion to deem the material part of the appellate record. [See Cal. Rules of Court, rules 8.155(a)(1)(A) and (a)(2).] In this manner, delay in a priority appeal . . . may be avoided in the future.”
III. SEALED RECORD ITEMS
A. Marsden Transcripts – Use Rule 8.47
The most commonly sought sealed transcript is from a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) at which the appellant registers complaints about the performance of trial counsel. A Marsden transcript is to be handled by revised procedures under changes to the California Rules of Court, rule 8.47, effective January 1, 2014.
As contemplated under the new rule, it appears that appellant may file their AOB (sans Marsden notice formerly under 8.328(b)(4)) and then the Attorney General must affirmatively request a copy of the sealed Marsden transcripts. Appellant may then file a response to address any redaction concerns within 10 days after the AG’s application is filed.
B. Redaction of Juror Identifying Information
Code of Civil Procedure section 237 requires that juror identifying information be sealed. Pursuant to this statute and California Rules of Court, rule 8.332, the names, addresses, and telephone numbers of trial jurors and alternates who were sworn to hear the case must be redacted from all documents.
However, there are occasions when disclosure of juror information is necessary to fully investigate and/or support an issued raised on appeal. For example, when a Wheeler challenge is raised on appeal, limited disclosure of juror information – i.e., surnames – may be useful/necessary.
See a sample motion to unseal juror information.
As with all motions that require an unusual appearance in the trial court, appointed counsel with the Third and Fifth District Courts of Appeal will need to move to expand their appointment to be compensated for this work. See a sample motion to expand appointment.
C. Other Sealed Record Items
Rules of Court, rule 8.46 covers other in camera hearings and generally provides that sealed record items will remain sealed except on order of the reviewing court. A party can move to unseal the record as provided in the rules.
D. Court Policies on Sealed Record Items
When sealed record items are needed for an appeal, first check the Court of Appeal’s docket for the case to see if the sealed record was previously received and lodged in that court. If the court has already received the sealed record, file a motion to transmit the sealed material to counsel. Otherwise, if the sealed material has not been lodged in the Court of Appeal, file a motion to augment the record.
In the Third District, when filing a motion to augment for a sealed record that has not been received by the Court of Appeal, do not at the same time move for permission to view the sealed material. Instead, once the augmented record has been filed, THEN move for permission to view the sealed record. On receipt of the motion to view, the court will examine the sealed record and determine whether to grant counsel’s request to view it. In other words, they prefer a 2-step process rather than an all-in-one motion.
Be sure to look at a comparison of the Procedural Policies of the Third vs. Fifth District on sealed record items.
Exhibits are part of the record. (See Cal. Rules of Court, rule 8.320(e).) However, with the exception of exhibits introduced to prove a prior conviction or prior prison term (see Cal. Rules of Court, rule 8.320(b)(13)(C)) and transcripts of audio and video statements (see Cal. Rules of Court, rule 8.320(b)(11)), copies usually are not provided to appellant along with the clerk’s and reporter’s transcripts.
To review exhibits, panel attorneys who are distant from the superior court may ask trial counsel to provide copies of documentary exhibits. If trial counsel does not have the needed exhibits, there is the possibility of having the exhibits transferred to the nearest Court of Appeal for viewing and then sent back to the trial court. Otherwise, the panel attorney may consider viewing the exhibits at the superior court. However, travel expense and travel time to view the exhibits will not be compensated unless prior approval is sought. See a sample request for travel expenses.
Alternatively, counsel may seek to augment the record on appeal with documentary exhibits to facilitate review. See a sample request to augment for exhibits under rule 8.340 [formerly rule 32.1(d)].
Otherwise, if the exhibits are relevant to issues raised on appeal, counsel should ensure their production in the appellate court by making a request pursuant to California Rules of Court, rule 8.224. See a sample request to transmit exhibits under rule 8.224 [formerly rule 18].
V. Settled Statements
A settled statement operates to make up for the absence of a reporter’s transcript of oral proceedings. (See Cal. Rules of Court, rule 8.346.) Settled statements and the procedures for obtaining them are discussed in a separate CCAP article called “Procedures for Obtaining a Settled Statement.” Consider the option of a stipulated settled statement if all parties can agree.
Look also at the comparison chart for procedural policies of the Third vs. Fifth District on settled statements.
VI. Judicial Notice
In comparison with a settled statement, the procedure for judicial notice is much simpler. Appellate courts have both the mandatory and discretionary power to take judicial notice. Evidence Code section 459 provides that the reviewing court may take notice of matters noticed by the trial court, matters the trial court was required to notice under sections 451 or 453, or any matters specified in section 452. Also, the reviewing court may take notice in a tenor different from that noticed by the trial court.
It is recommended that you obtain a ruling on a motion for judicial notice before filing the opening brief, rather than filing them simultaneously. It is generally a good practice that when referencing judicial noticed materials in a brief, the first reference should be accompanied by a footnote identifying the date the motion was granted.
In the Third and the Fifth District, it is not necessary to augment the record with judicial noticed materials. Once the court grants the motion for judicial notice, it becomes part of the appellate record.
See a sample request for judicial notice.
VII. Correcting the Record
A. Encountering Unredacted Juror Information – A Record Defect
Appointed counsel is ethically obligated to notify the court immediately upon counsel’s discovery of the presence in the record of any unredacted personal juror identifying information. The Court of Appeal will then issue a suitable corrective order.
B. Encountering Transcripts Which Should Have Been Sealed
If the public portion of the record includes a portion that should have been sealed but obviously has been sent to all parties, a request for correction of the record can be made.
C. Procedural Policies on Correcting the Record
In order to correct the record, counsel should file a motion in the Court of Appeal (not the trial court) to request a correction. (See Cal. Rules of Court, rules 8.340(c), 8.155(c).) Counsel should not contact the court reporter directly. The Court of Appeal may order the correction or certification of any part of the record, and may order the superior court to settle disputes about omissions or errors in the record. (Cal. Rules of Court, rules 8.155(c).)