UPDATE: AUGMENTING AND COMPLETING THE RECORD IN CRIMINAL APPEALS: A CHECKLIST
 
 by Richard L. Rubin

A couple of years ago, I wrote an article entitled Augmenting and Completing the Record in Criminal Appeals: A Checklist. I thought, at that time, that this would provide perpetual and everlasting guidance for present and future generations of appellate attorneys in preparing augment motions and requests to complete the normal record on appeal. Then, in 2007 – from clear out of the blue – the Judicial Council completely revised and renumbered the Rules of Court, therefore effectively rendering my otherwise perfectly good article obsolete. Below is an updated and revised version of that prior article.

When I first started handling criminal appeals, almost 20 years ago, I generally approached the task of completing and augmenting the record by what might be referred to as the "blank page method." I would start with an otherwise blank piece of paper with the heading "Augmentation" at the top and, as I reviewed the clerk's and reporter's transcripts, I would jot down items which appeared to be missing from the "normal record," as well as augmentation items relating to potential appellate issues. After using the "blank page method" for a few years, it occurred to me that certain items regularly came up as subjects of my requests to complete the normal record (presently governed by rule 8.340(b), previously rule 32.1(b) and before that rule 35(e)) and my augmentation motions, while other things came up rarely or never. For example, certified documents used to establish a defendant's prior convictions or transcripts corresponding to a defendant's tape-recorded interview by the police, although normal record items, are often inadvertently omitted by court personnel in preparing the clerk's transcripts. However, I have never come across a case where a reporter's transcript omitted the judge's final oral instructions to the jury and only once or twice have I seen a reporter's transcript which omits testimony from a witness made before the jury. Accordingly, I gradually switched from the "blank page" method of looking for missing normal record and augmentation items to developing a checklist of items which I frequently found to be subjects of augmentation or rule 8.340(b) requests. Now, when I review a new appellate record, I begin with my checklist as a starting point and cross off items as I find them. As I review the transcripts I may still add new items, beyond the scope of the checklist, to my list of what I may be requesting by way of augmentation, but the checklist always serves as my starting point for record review.

Rules governing augmentation and the procedure for obtaining missing normal record items are contained in the Rules of Court. In particular, rule 8.320 defines what should be included in the normal record in a criminal appeal. Rule 8.340(b) covers the procedure for requesting missing normal record items. Augmentation is covered by rule 8.340(d) and rule 8.155. Rule 8.155(a) states that a party to an appeal may request that the record be augmented with "any document filed or lodged in the case in superior court." (Emphasis added.)

Listed below are items which, in my experience, regularly turn up in augmentation motions and/or requests for missing "normal record" items. This checklist is not designed to be exhaustive or all-inclusive; several normal record items are omitted from the checklist. For example, oral instructions to the jury (part of the normal record, per rule 8.320(c)(4)) and the abstract of judgment (covered by rule 8.320(b)(8)) are not included, because in my experience these items rarely or never turn up missing from the record. Here is the standard checklist I use in searching for augmentation/rule 8.340(b) items:

– Reporter's transcript of opening statements by the prosecutor and by defense counsel. Opening statements given by the attorneys at the beginning of a jury trial, are not included in the normal record on appeal. (See rule 8.320(c)(3).) However, if the opening statements are subsequently mentioned in connection with some potential appellate issue (e.g., an objection to DA misconduct), then counsel's opening statements should be requested as augmentation items.

– Transcripts of audiotaped and videotaped statements. If the jury listens to an audiotape or videotape of a statement (such as a police interview of the defendant or victim), then a corresponding transcript should be found in the clerk's transcript. This is a normal record item. (Rule 8.320(b)(11) and rule 2.1040.)

– Packets of documents used by the DA to establish defendant's criminal convictions or past prison terms for enhancement purposes. (See Penal Code, § 969b.) Often a defendant will be charged with an enhancement allegation based upon past crimes and the judge or jury will be asked to render a verdict regarding an alleged enhancement. Assuming the allegation is found true, packets of certified documents used to prove a prior conviction or prison term should be included as a normal record item in the clerk's transcript. (Rule 8.320(b)(13)(C).)

– Jury instruction conferences. If the clerk's minutes for a particular court hearing reflects a jury instruction conference between the judge and trial counsel, then there should be a corresponding reporter's transcript, unless there is a specific notation that this discussion was held "off the record." This is part of the normal record on appeal.  (Rule 8.320(c)(3).)

– In limine motions. Reporter's transcripts for in limine motions are part of the normal record on appeal. (Rule 8.320(c)(2).) These are sometimes inadvertently omitted from the record, particularly if the judge and counsel discuss an in limine matter (such as an evidentiary issue) on a day otherwise devoted to jury voir dire.

– Given and refused jury instructions. Given and refused jury instructions should be included in the clerk's transcript as a normal record item. If the record reflects that an attorney requested jury instructions, but the instructions were refused, then the clerk's transcript should include copies of the refused instructions if they were submitted in written form. (Rule 8.320(b)(4).)

– Notes and questions submitted from the jurors. Any notes submitted at any time from the jury foreperson or any individual juror to the judge should be included in the clerk's transcript as a normal record item. (Rule 8.320(b)(5).) Also, all oral proceedings, including on-the record discussions between the judge and the attorneys addressing juror questions, should be included in the reporter's transcript as part of the normal record. (Rules 8.320(c)(3), (4) & (5).) Frequently, a clerk will neglect to include discussions and proceedings relating to the jury's requests for clarifications and readbacks during deliberations.

– Probation reports. Original and supplemental probation reports, as well as any attachments to a probation report (such as calculations of restitution and letters from relatives of the defendant and/or the victim), should be included as part of the normal record. (Rule 8.320(b)(13)(D).)

– Marsden and Faretta motions. Proceedings relating to Marsden and Faretta motions should be included as part of the normal record. This includes any written motions filed by the defendant. (Rule 8.320(b)(13)(A) and rule 8.328(a).) Note that there are special procedures regarding sealing and limited access to Marsden hearing records. (See rule 8.328(a).)

– Batson-Wheeler motions and other jury voir dire proceedings. Jury voir dire is not included as part of the normal record. (Rule 8.320(c)(3).) However, if there was a Batson and/or Wheeler motion, then you should request reporter's transcripts for the entire jury voir dire. (See Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139 [complete transcript of voir dire is called for to engage in comparative juror analysis to determine Batson issues].) Also, if there is a potential issue regarding jury misconduct, such as the failure of a juror to disclose his or her bias or familiarity with a witness or trial issue, then you may wish to request jury voir dire concerning that particular juror. Also, where there is a potential Batson-Wheeler or juror misconduct issue, you may want to also consider requesting copies of written juror questionnaires regarding the jurors at issue.  Note that court materials relating to actual (but not potential) jurors are generally redacted to preserve juror privacy. (See Code Civ. Proc., § 237.)

– Reporter's transcripts for entries of pleas (other than not guilty pleas). The reporter's transcript should include, as part of the normal record, any guilty or no contest plea or any admission of an enhancement allegation. (Rule 8.320(c)(1).)

– Informations and indictments. The normal record should include the original and any amended informations, as well as any indictments by a grand jury. (Rule 8.320(b)(1).)

– Trial court orders made subsequent to the preparation of the record. Rule 8.340(a) provides that if the trial court amends or recalls the judgment, or issues an order amending the sentence or probation terms, the corresponding order and/or amended abstract is deemed to be part of the record on appeal. Copies should be forwarded to appellate counsel and the reviewing court.

– Search warrants. If a search warrant is relevant to an unsuccessful defense motion for suppression of evidence, then the search warrant should be included in the normal record. (Rule 8.320(b)(13)(B).)

– Motions to suppress evidence. The transcripts should include any written motions to suppress evidence and reporter's transcripts for any defense motions to suppress evidence which were denied in full or part. (Rule 8.320(b)(13)(A) and rule 8.320(c)(9)(A).)

– Denied defense motions. The transcripts should include paperwork and oral proceedings for any written or oral defense motions denied in whole or part, except for Penal Code, § 995 motions and motions to disqualify a judge. (Rule 8.320(b)(13)(A) and rule 8.320(c)(9)(A).)

– Documents and pleadings relating to sentencing proceedings and new trial motions. You should carefully read the reporter's transcripts for motions for a new trial and sentencing proceedings to see if there were any pleadings and documents reviewed by the judge which did not make it into the clerk's transcripts. Any written motion for a new trial is part of the normal record. (Rule 8.320(b)(9) and rule 8.320(b)(13)(A).) Some documents which are submitted or come before the court during sentencing proceedings or new trial motions are not normal record items and must be sought by means of augmentation.

– Other normal record augmentation (rule 8.320(b)) items. The reporter's transcript should reflect all "on the record" discussions which took place during trial. To check if anything is missing, it is necessary to compare the clerk's minutes for the days of trial with the reporter's transcripts to ensure there is no reference to hearings (such as in- chambers discussions and jury instruction conferences) which are reflected in the clerk's minutes but were not included in the reporter's transcript. Also, sometimes clerk's minutes for a day of trial may have been inadvertently omitted; this should be requested as part of the normal record. Clerk's minutes for all pretrial, trial and post-trial
proceedings should be included in the clerk's transcripts. (Rule 8.320(b)(3).)

– Review the exhibit list. Check the list of trial and pretrial exhibits, which may be found as a separate document in the clerk's transcripts and/or contained in the table of contents at the beginning of the reporter's transcripts. As stated above, certain exhibits, such as certified documents used to prove prior convictions and transcripts of tape-recorded statements played for the jury, should be included in the clerk's transcript as parts of the normal record. Apart from that, it may sometimes be helpful or necessary to informally obtain and review copies of documentary exhibits which were introduced during or before trial. Although exhibits (apart from those particular exhibits which are
contained in the normal record) are not generally obtainable as augmentation items, it is usually possible to obtain working copies of exhibits through arrangements with the court clerk or the appellate project with which you are working. Rule 8.224(a)(1) provides a procedure for transmitting pertinent exhibits to the review court when those exhibits are not included in the transcripts on appeal. Check e-mail correspondence. (A new trap for the unwary.) In a few recent cases I have discovered e-mail exchanges involving the attorneys and the judge which included discussions and requests for jury instructions. It is a good idea to ask trial counsel if such e-mail exchanges took place. If an on-line discussion of this nature presents an appellate issue of a refused or objected-to instruction, then you need to request that these e-mails be included in the record through augmentation or a request for a settled record.