For the record!

As an appellate attorney I can say one of the most annoying things about an appeal is when shit is missing from the record. Of course, this is through no fault of trial counsel. However, this post is to alert trial counsel to things that would be helpful to do in every case to ensure a perfected record.

Anytime a DA presents a power point or other demonstrative exhibit to the jury, please ask that it be printed and added to the court file. Obviously you don’t want it entered into evidence because a power point shouldn’t be evidence. But I do not see anything wrong with asking the court to make it part of the court file so that appellate counsel can easily get a copy of it. I doubt most power points are improper, but I think it is important to have a chance to have someone review it. Also, frankly, if there are any clip art images or things in there besides basic truthful statements of the law or evidence, object. This seems like a ripe place to lodge a complaint. This goes without saying, but also include the 6 pack line up photo (ideally in color) to your motion to suppress an ID for the same reasons.

Appellate counsel will not receive any videos or exhibits, unless counsel requests it. Please keep copies of these because often it is not strategically wise for appellate counsel to add it to the record on appeal without looking at it first. Therefore, counsel’s best course of action is usually just to email defense counsel first.

Additionally, please be annoyingly specific and systematic about making sure the record is clear as to what portions of the video are being played for the jury, whether the entire video is given to the jury for deliberations and/or which portions have been entered into evidence, and the name of the actual file that is played.  DAs are horrible about this while I’ve noticed that defense attorneys are thorough. Interject to correct the DA and make it clear. Or ask for a side bar and an admonition to the DA to get his/her shit together.

For the love of god, please do not have discussions on evidentiary issues or jury instructions off the record. I get it. I used to do this in chambers because the judge asked to do it. I was a baby public defender, it didn’t occur to me to refuse. But why do judges ask to do it? Because they say stupid shit behind closed doors that they are not going to repeat in open court. By doing a dress rehearsal behind closed doors, you’re also giving the judge a chance to come up with a better reason to deny you instead of flying off the cuff. Finally, it is very very very very likely you’ll forget to put an issue on the record and then it’s like it never happened. Please don’t make my ass go to the trial court so everyone can agree 6 months later that the judge excluded a piece of evidence.

Also, unless it is going to really harm your client, I’d flat out say as soon as you are before a judge that you will not have any closed door conversations and you want a court reporter for any side bars. If judges act like it would be a logistical nightmare it wouldn’t be. I did it in a trial in LA. The court reporter rolls his or her little typie-thing over to the side bar or you can use those headphone things the interpreters use.

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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