At the CDRC, we regularly receive questions from defense attorneys around the state. In this column, we reprint our answers to common or interesting questions (with any identifying case details omitted or modified) that might be helpful to a wider audience.

Question: The court reporter filed a certificate of filing in an appeal that I’m working on asserting that all transcripts had been filed, and that no record exists to be transcribed for the second day of trial, when the jury was apparently selected and both sides gave their opening statements. I now have the transcript for day one of the trial, which ends with the trial court adjourning for the day in the middle of jury selection, and the transcript for day three of the trial, which starts with the prosecution calling its first witness, but no record of what happened in between.

How is this possible, and how is this fair to my client? 

The transcript of a judicial proceeding may be lost as a result of several different human or technological errors. Unfortunately, this happens frequently enough that the steps that must be taken to ‘recreate the record’ of what occurred during unrecorded hearings are set forth in a Court Rule. When the transcript of a proceeding cannot be prepared in a criminal case, the absence of that transcript may violate the defendant’s constitutional right to appeal and/or to the effective assistance of appellate counsel and ultimately entitle them to a new trial. But a missing transcript is rarely a benefit to defendants. In practice, a missing transcript impedes and delays meaningful review and makes it hard—not easier—to establish that reversible error occurred. 

The Constitutional and procedural framework

The Michigan Constitution guarantees all criminal defendants an opportunity to appeal by right or by leave, and correspondingly, to the effective assistance of appellate counsel.  “Appeals to the Court of Appeals are heard on the original record,” which primarily means the lower court filings and “the transcript of any testimony or other proceedings in the case appealed.”  Because transcripts are typically a prerequisite to pursuing an appeal, the court rules require that court reporters produce a verbatim transcript of all portions of criminal trials, and provide that “[t]he appellant is responsible for securing the filing of the transcript[s].”  Because having a complete record of the lower court proceedings is so important, when an indigent defendant submits a request for appellate review, the order appointing appellate counsel also directs the court reporter to prepare and file “the full transcript of all proceedings,”  and Standard 1 of the Minimum Standards for Indigent Criminal Appellate Defense Services requires that appointed appellate counsel ensure “that all useful and necessary portions of the transcript are ordered.”

Ordinarily, court reporters file each transcript listed in the order of appointment and serve it on both parties. When they are unable to prepare a transcript for a hearing listed in the appointment order, they usually file a certificate stating that no transcript can be prepared for that date.

Why a missing transcript undermines the Defendant’s right to appeal

If the court rule provided no exception to the requirement that appeals must be heard on the original record and appellants could only file their appellate brief after filing a transcript for every lower court proceeding, then a missing transcript could prevent defendants from ever filing an appeal. It would be fundamentally unfair and violate due process to deny defendants their right to appeal due to an error that is entirely outside of their control. The court rules relieve both civil and criminal appellants of their obligation to file a transcript that a court reporter cannot produce but does require that they attempt to settle the record.

A missing transcript does not automatically entitle criminal defendants to a new trial even though it may prevent them from appealing a reversible error and prevent their appellate counsel from discovering and effectively pursuing that issue on their behalf. It more commonly serves as an impediment to relief on appeal than as the basis for appellate relief.

Your obligations as appellate counsel

When an appellate attorney learns that a transcript for a hearing cannot be prepared, they are required to file a motion to settle the record in the trial court,  and “where reasonably possible,” they must also file a proposed statement of facts that “concisely set[s] forth the substance of the testimony, or the oral proceedings … in sufficient detail to provide for appellate review.”  To comply with this requirement, once you are notified that a transcript cannot be prepared for a hearing, at a minimum, you should ask your client and their trial attorney if they have any recollection of what happened during the hearing or any notes describing what occurred.

Your client will be better served if you are able to identify and elicit testimony about possible errors that may have occurred during the unrecorded proceeding than they would be if you allow the trial court and prosecutor to recreate the record on their own. This is important because Michigan courts apply the “presumption of regularity,” so your client will not be entitled to a new trial simply because the certified statement of facts does not assert that the jury was sworn or provided a reasonable doubt instruction.  However, your client may be entitled to relief based on errors described in the certified statement of facts, or because the statement indicates that errors may have occurred that were not fully developed due to fading memories and incomplete notes.

If after speaking with your client and their counsel you feel confident in your ability to prepare a proposed statement of facts that can adequately facilitate your client’s right to appellate review, then you are obligated to submit a proposed statement of facts with your motion.  Your proposed statement of facts should fully describe any errors that you are aware of and note any ambiguities or questions that remain following your investigation.

If you think the proposed statement of facts would be inadequate to facilitate appellate review, you should file a motion to settle the record without a proposed statement of facts. Even when you do not submit a proposed statement of facts, it is a good idea to document any errors you learn about during your investigation by submitting an affidavit describing them with your motion to settle the record. This will allow you to demonstrate to the trial court and Court of Appeals that you have attempted to comply with the court rule and provides you the opportunity to influence the statement of facts the trial court may ultimately certify. Additionally, a recent Court of Appeals opinion suggests that errors that a party claims occurred during an unrecorded hearing must be set forth in an affidavit and cannot simply be described in a motion for remand. 

Whether to file a motion for a new trial with a motion to settle the record

In addition to submitting an affidavit describing any errors that you learn about, if you file a motion to settle the record without a proposed statement of facts, you should also think strategically about whether to concurrently file a motion for a new trial alleging that the missing transcript and inability to settle the record will violate your client’s right to appeal and to the effective assistance of appellate counsel. 

To be entitled to relief “because the transcript is unavailable and cannot be reconstructed,” you will at some point need to set forth “specific allegations of error [that] are unreviewable as a result and, thus, the defendant is prejudiced.”  This is of course difficult to do without the benefit of a transcript or a clear understanding of what occurred during the unrecorded proceeding but is a prerequisite to securing relief on appeal based on a missing transcript. There are good reasons to file this motion concurrently with a motion to settle the record and also good reasons to wait to file the motion until after the trial court certifies a statement of facts.

Describing the errors you believe the missing transcript prevent you from effectively pursuing on your client’s behalf at the outset will signal to the trial court and Court of Appeals that you are describing a legitimate issue and not fishing for one. It will also invite the trial court to attempt to elicit testimony and search its notes and memory to prepare a certified statement of facts that will allow you to effectively pursue the issue on appeal. And it also suggests that a new trial is the appropriate remedy if the court determines that the issue cannot be developed in sufficient detail to enable meaningful appellate review. 

One downside of filing a motion for a new trial concurrently with your motion to settle the record is that you may learn about additional issues during the hearing that the missing transcript also prevents you from effectively appealing. You may be taken less seriously or perceived as disingenuous if you raise them after you have already moved for a new trial based on your inability to effectively appeal unrelated issues. Another possible downside to filing a motion for a new trial before the hearing on your motion to settle the record is that it will provide the trial prosecutor an opportunity to consider how best to respond when asked about the issue at the hearing. 

Still, if you are provided with an opportunity to question witnesses about the unrecorded proceeding, you should ask them about any issues that you believe could entitle your client to a new trial if the transcript of the hearing existed. The Court of Appeals has expressed a concern about gamesmanship in the context of a motions to settle the record, so it has stated “that appellants should typically seek to identify potential factual or legal issues before a record-settlement hearing occurs.”  

As such, remand for a second hearing would likely be the most you could hope for if you choose to forego an opportunity to develop the record in support of an issue but then claim that the missing transcript has deprived your client of the opportunity to pursue the issue on appeal. Most prosecutors are used to thinking on their toes and will recognize the reason you are focusing on a particular issue even if you have not formally presented the issue as a basis for a new trial. 

You and your client should also discuss whether they would like to testify about any errors or issues that they recall. It makes sense that their memory of certain types of errors would be better than those of the attorneys, given its impact on your client’s life and the number of cases the attorneys are involved in each year. And in at least one Michigan case, the defendant was granted relief based on his testimony about an error that none of the attorneys who testified could recall or refute. 

The standard for relief when a transcript is not available

What exactly a defendant must show, or a court must find, for a defendant to be entitled to a new trial as a result of a missing transcript and an unsatisfactory certified statement of facts is unclear. The Michigan Supreme Court has not attempted to articulate a standard, and the Court of Appeals acknowledged in People v Craig that because it believed that both standards were satisfied, it was leaving unresolved whether a “defendant must show prejudice through the inability to review his ‘specific allegations of error,’ ” or “through the inability of his ‘appellate counsel to provide effective assistance’ by reviewing the trial proceedings.”  

What is clear, however, is that that the unavailability of a transcript is not a structural error that entitles the defendant to automatic reversal. To demonstrate your client’s right to appeal and/or to the effective assistance of appellate counsel will be violated unless they are granted a new trial, you must identify a case-specific error that the missing transcript may have prevented you from raising on appeal and explain why you believe that this error may have occurred based on the record that does exist.

Research & Training Attorney, CDRC

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