How to Correct or Add to the Record for an Appeal

It is quite common for our office to receive a call from someone who claims the transcript from trial is wrong or missing something.  The person may want to sue the court reporter or court clerk.  

Indeed, an appellate attorney should review the transcripts provided by the superior court to be sure it is complete.  The California Rules of Court set forth what reporter’s transcripts and court documents are required to be in the “record” presented to the court of appeal.  The exhibits presented to the court during trials or hearings are officially part of the record, but they are not automatically sent to the court of appeal or the appellate attorneys. California Rules of Court, rule 8.320.

An appellate attorney can usually obtain the exhibits from trial counsel or go to the superior court to view the exhibits file.  In order for the court of appeal to view the exhibits, one of the attorneys usually must make a request that the needed exhibits be transferred to the court of appeal. California Rules of Court, rule 8.224.  Occasionally, an appellate attorney will file a motion to augment (add to) the record, asking that some exhibits be transmitted to the court of appeal and copies provided to the appellate attorneys.  A request is more likely to be granted if the attorney lives far away from the superior court, is unable to get a copy of the exhibits from trial counsel, and/or needs to spend a lot of time reviewing the exhibits. 

If items are missing from the record, the attorney should send a letter to the superior court notifying the clerk that additional items must be produced. California Rules of Court, rule 8.340(b).  If the attorney thinks there are additional transcripts or documents from the trial court proceedings that will be helpful, but that are not normally part of the record on appeal, the attorney can file a motion to augment the record with those items. California Rules of Court, rules 8.115, 8.324, 8.340(c). 

Sometimes documents will have been “sealed” or deemed confidential by the superior court and the appellant’s attorney must make a special request to view them. California Rules of Court, rules 8.45-8.47.  Occasionally, documents are lost entirely.  In order to get the information before the court of appeal, the parties have to present an agreed statement or get an order from the superior court to file a settled statement. California Rules of Court, rules 8.344, 8.346.

When reviewing the record, an appellate attorney will sometimes discover errors that the superior court made that were in favor of the person who was convicted and sentenced.  These can be mistakes in calculating or recording the sentence or failure to make orders that were legally required.  If the deputy attorney general who handles the case or court of appeal notices the error, and the court of appeal corrects it, the appellant will be in a worse position than before the appeal.  These situations are referred to as “adverse consequences of appeal.” 

If an attorney notices a possible adverse consequence, the attorney should notify the appellant, advise them about the potential benefits versus the risks of continuing the appeal, and ask the appellant to decide whether they want to abandon the appeal.  In making a decision, the appellant should consider how serious the adverse consequences could be, how likely it is that the court or deputy attorney general will notice the error, how strong the appeal issues are, and how much the appellant could benefit from a favorable decision on those issues.  The appellant should also consider that some types of errors are likely to be noticed by CDCR legal processing or case records staff regardless of whether the appellant pursues an appeal.  The CDCR could then ask the superior court to correct the error. 

 An appellant who decides that the risk of adverse consequences outweighs the possible benefits of continuing the appeal can abandon the appeal.  The appellant and their attorney must sign a notice of abandonment and file it in the court of appeal. California Rules of Court, rule 8.316.  By filing a notice of abandonment, the appellant gives up the right to pursue an appeal.  The appeal process is then over.

This article would not be possible without reference to the invaluable treatise published by the Prison Law Office, California Prison and Parole Law Handbook.  We thank them for their work.

For more information about appellate issues in general, please click on the following articles: