RECORDS ON APPEAL
In order for an appellant to prosecute an appeal, a record of a trial court's proceedings must be filed with an appellate court. The reason for the trial court's record is that the appellate court does not conduct an evidentiary hearing during an appeal. It does not take testimony or admit evidence. Its role is to examine the trial court's proceedings in accordance with the record in order to determine whether the trial court committed any errors.
An appellant has the burden of obtaining a record of a trial court's proceedings in order for an appellate court to consider the issues that the appellant is raising on appeal. The appellant has the duty to ensure that the record is filed with the appellate court and to pay any fees that are required for the filing of the record.
Records on appeal may consist of a record from a clerk of a trial court, a record from a court reporter, or a statement of facts.The clerk's record must include copies of the indictment or the information, any special pleas or motions on the part of a defendant, waivers on the part of the defendant, the trial court's docket sheet, jury instructions, a jury's verdict or the trial court's decision, and the trial court's judgment. The clerk's record must also contain an appellant's notice of appeal, any post-trial motions, any appeal bond, or any bills of exception. The clerk's record may also include any other items that the appellant deems are necessary to show error on the part of the trial court, such as documentary evidence that was admitted at trial or search warrants or arrest warrants.
A court reporter's record is the reporter's transcription of the events at an appellant's trial. The transcription must include all sessions before a trial court. Such sessions include all objections to the admission of evidence, the trial court's rulings on the evidence, and any bench conferences. If a bench conference is not recorded by the court reporter, a defendant should file an objection at his or her trial in order to preserve the error on appeal.
If a complete record of a trial court's proceedings is not available, an appellant and an opposing party may agree as to a statement of facts that will be submitted to an appellate court as part of the record. If the parties cannot agree on the statement of facts, the appellant may submit his or her version of the statement of facts. The opposing party may then submit its version of the statement of facts.
An appellant has the duty to ensure that records are timely filed with an appellate court. Although a clerk is responsible for preparing and filing his or her record and a court reporter is responsible for preparing and filing his or her record, the appellant is responsible for making the appropriate requests for the records and for paying the appropriate fees for the records.
If either a clerk's record or a court reporter's record is lost or destroyed, an appellant's conviction may be reversed if a significant portion of the record was lost or destroyed without any fault of the appellant, if the parties cannot reach an agreement as to the record, and if the lost or destroyed record was crucial to the appellant's case. The loss or destruction of a small portion of the record is unlikely to result in a reversal of the appellant's conviction unless the appellant can prove that he or she was harmed by the loss. In such a situation, the appellant is more often awarded a new trial.
An appellant must pay for the transcription of a court reporter's record. If the appellant is indigent, he or she may be entitled to a free record upon a proper showing of indigency.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.
