Dealing with sealed records can be tricky and counsel must take care to appropriately handle these at the conclusion of the appeal. The normal rule that the entire record goes to the client may not apply to sealed portions. Consider the following scenarios:
In one case, appointed counsel was sent sealed records from the Court of Appeal with a notation on the cover, “It is recommended that this report not be provided to the examinee.” The order granting access to the report named counsel, not the appellant. At the end of the case, counsel filed an application in the court requesting guidance on how to dispose of the sealed materials, and citing the Rules of Professional Responsibility that the record belongs to the client. The court directed that the sealed report be returned to the Court of Appeal.
A. Marsden Transcripts – Use Rule 8.47(b)
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 8.47, effective January 1, 2014.
As contemplated under the rule, it appears that appellant may file their AOB (sans Marsden notice) 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 and Confidential Record Items
California Rules of Court, rules 8.45-8.47 address sealed and confidential records. Generally, a sealed or confidential record that is part of the record on appeal, or a reporter’s transcript of an in-camera hearing, is only transmitted to the reviewing court and the party or parties who had access to the record or who participated in the hearing in the trial court or other proceedings under review and may be examined only by the reviewing court and that party or parties. If a party’s attorney but not the party had access to the record in the trial court or other proceedings under review, only the party’s attorney may examine the record. (Cal. Rule of Court, rule 8.45(d).) Rule 8.46 covers sealing and unsealing records in the Court of Appeal, and the procedures for filing documents that disclose information from sealed records. In addition to addressing records of Marsden hearings, rule 8.47 outlines the procedures for filing documents that disclose information from other confidential records. The Third and Fifth Districts also have their own local policies related to filing documents that disclose information from sealed or confidential records. See Seal, Requesting Permission to File Documents Under in the procedural comparison chart for the Third and Fifth Districts.
D. Court Policies on Sealed and Confidenital 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 received and lodged. 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 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.