Fill and Sign the Transcript Proceedings Form

IN THE CIRCUIT COURT OF _______ COUNTY, ________ NAME OF PLAINTIFF )       ) ) V. ) NO. ) ) NAME OF DEFENDANT )       ) ) MOTION FOR COMPLETE RECORDATION FOR A TRANSCRIPT OF ALL PRE-TRIAL PROCEEDINGS AND FOR A DAILY TRANSCRIPT OF SPECIFIED PORTIONS OF THE EVIDENCE COMES NOW, ______________, by counsel, and moves this Court pursu ant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article __, Sections _________ of the ________ Constitution to assure com plete recorda tion of all the pro ceedings against him, for a transcript of all pre-trial proceedings against him, pre pared prior to his trial, and for a daily transcript of specified portions of the trial proceedings. In support of his motion _____________ states as follows: It should need no reiteration that a complete record should be made in a capital case. This record should include, but not be limited to: a. a complete transcript of all pre-trial proceedings (with the sole exception of telephone calls reasonably necessary to the estab lishment of an agenda); b. all bench conferences; c. all discussions of any sort con cerning the case which are held in chambers with or without one or more of the counsel in the case; d. all objections and rulings thereon; e. all voir dire and the exercise of challenges for cause or peremptory challenges; f. the race of every venire person called for jury duty or excused from jury duty for any reason; g. the race of all witnesses; h. all testimony of all witnesses, including a careful re cord of all exhibits relating to each witness, and the in clusion of copies of all exhibits proffered, submitted and admit ted into evidence; i. all arguments, both to the jury and to the trial court; j. all contacts between the jury and any other person, ex cept for contacts explicitly and carefully allowed by the trial court, at a hearing, after consultation with defense counsel; k. any and all questions or written statements made by ju rors; and l. anything else which may transpire in the course of this case. The State bears the burden of establishing a clear and complete record of criminal proceed ings. Wright v. Lacy , 664 F. Supp. 1270, 1275 (D. Minn. 1987) (citing Golden v. Newsome , 755 F.2d 1478, 1479 (11th Cir. 1985)). Indeed, ultimately the State has the "duty . . . to have the trial testimony entered in the re cords of the court and to file a transcript following a guilty verdict." Zant v. Cook , 259 Ga. 299, 379 S.E. 2d 780, 781 (1989) (citing Montgomery v. Tremblay , 249 Ga. 483, 292 S.E. 2d 64 (1982); Wade v. State , 231 Ga. 131, 200 S.E. 2d 271 (1973)); see also Parrot v. State , 134 Ga. 160, 161, 214 S.E. 2d 3 (1975); Graham v. State , 757 S.W. 2d 538, 541 (Ark. 1988); Gardner v. State , 754 S.W. 2d 518, 524 (Ark. 1988). In light of the judge's role as arbiter of the ac cused's constitutional right to a fair trial, the duty to ensure the complete recordation of the case also rests with the court. See United States v. Gar - ner , 581 F.2d 481 (5th Cir. 1978). "The trial judge has a duty to see that the reporter makes a true, complete and accu rate record of all proceedings." American Bar Association, Standards Relating to the Trial Judge § 2.5 (1972) (emphasis supplied) . The Mississippi Supreme Court, under its superviso ry powers, has directed the trial courts to "require, as a mini mum, a recording of all facets of a criminal trial . . ." Dor rough v. State , 437 So. 2d 35, 37 (Miss. 1983) (emphasis sup plied). Once the record is completed, the trial court has the duty to provide an indigent defendant with an adequate record for appeal, as well as with records needed for the effec tive assis tance of counsel. Emerson v. State , 664 S.W. 2d 787, 789 (Tex. App. 1 1984). A record must be made of all portions of the pro ceed ings needed to ensure an ade quate defense or meaning ful appeal. See , e.g. , Doby v. State , 557 So. 2d 533, 536 (Miss. 1990) (voir dire examination); Suan v. State , 511 So. 2d 144, 147 (Miss. 1987) (bench and cham bers con - ferences); Foun tain v. State , 601 S.W. 2d 862 (Ark. 1980) (bench conferences); Sheffield v. State , 777 S.W. 2d 743, 744 (Tex. App. 1989) (exhib its); Bond v. State , 694 S.W. 2d 622, 623 (Tex. App. 9 1985) (closing argu ments); Harris v. State , 552 So. 2d 866, 873 (Ala. Cr. App. 1989) (coram nobis proceed ings). There is a presumption of prejudice which arises when the indi gent accused is denied his right to a free tran script. Cf. United States v. Selva , 559 F.2d 1303, 1306 (5th Cir. 1977). In Britt v. North Carolina , 404 U.S. 226, 227, 92 S. Ct. 431, 433, 30 L. Ed. 2d 400 (1971), the Supreme Court held that "'a defendant who claims the right to a free transcript does not bear the burden of prov ing inade quate such alternatives as may be suggested by the State or conjured up by a court in hind sight.'" State v. Eng land , 363 S.E. 2d 725, 728 (W. Va. 1987) ( quoting Britt v. North Carolina 404 U.S. at 230); see also State v. Robinson , 387 So. 2d 1143, 1144 (La. 1980); State v. LeBlanc , 367 So. 2d 335, 337 (La. 1979); State v. Jones , 351 So. 2d 1194, 1196 (La. 1977); State v. Ford , 338 So. 2d 107, 109 (La. 1976); United States v. Brumley , 560 F.2d 1268, 1280- 81 (5th Cir. 1977); United States v. Upshaw , 448 F.2d 1218, 1223 (5th Cir. 1971); United States v. Garcia-Bonifascio , 443 F.2d 914, 915 (5th Cir. 1971). This Court should also order the transcription of pre-trial evidentiary hearings before the trial begins, to effectu ate _________________ constitutional rights. In Roberts v. LaVal lee , 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967), the Supreme Court recognized the right of the indigent accused in any criminal case (not simply those where life is at stake) to a free copy of the prelimi nary hearing. This transcript must be made prior to trial, to honor the accused's right to equal protection and to foster his right to effective assistance of counsel. As the Fifth Circuit recently explained in Tague v. Puckett , 874 F.2d 1013 (5th Cir. 1989): A state must provide an indigent with a tran script of prior proceed ings when needed for an effective defense. Id. at 1014 ( quoting Britt v. North Carolina , 404 U.S. 226, 227, 92 S. Ct. 431, 433, 30 L. Ed. 2d 400 (1971)). In Fisher v. State , 532 So. 2d 992 (Miss. 1988), the Mississippi Supreme Court discussed a claim that Britt required tran scrip tion of prior proceedings. While holding that there is no need to provide prior transcripts from an unrelated case, the Court held that "[t]here can be no doubt . . . that the state must provide an indigent defendant with a transcript of prior proceed ings when that transcript is needed for an effective defense." Id. at 999 ( quoting Britt v. North Carolina , 404 U.S. at 227); see also Carter v. State , 156 Ga. App. 633, 275 S.E. 2d 717, 718 (1980) (transcript of prior trial); Harris v. State , 582 So. 2d 857 (Ala. Cr. App. 1987); People v. Wells , 776 P. 2d 386 (Colo. 1989); State v. Johnson , 261 La. 620, 260 So. 2d 645, 649 (1972); Matter of Bullabough , 365 S.E. 2d 642, 646 (N.C. App. 1988); State v. Moss , 44 Ohio App. 3d 747, 748 (1988); Billie v. State , 605 S.W. 2d 558, 562 (Tex. Cr. App. 1980). 1 . Many cases have applied Roberts and Britt , ordering the transcrip tion of pre-trial hearings in preparation for trial. See , e.g. , State v. Lewis , 215 N.W. 2d 293, 295 (Iowa 1974); Hunter v. District Court for the Twentieth Judicial District , 519 P. 2d 941, 943 (Colo. 1974); Hawkins v. State , 486 P. 2d 743 (Okla. 1971); People v. Montgom ery , 18 N.Y. 2d 993, 224 N.E. 2d 730 (1966); Graham v. State , 757 S.W. 2d 538, 541 (Ark. 1988); Gardner v. State , 754 S.W. 2d 518, 524 (Ark. 1988). 2 . _____________ also has the right to a daily tran script of certain critical portions of the actual trial itself. "[M]ere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and . . . a trial is funda mentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effec tive defense." Ake v. Oklahoma , 470 U.S. 68, 75, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). Accord ingly, destitute defendants must be afforded access to transcripts in the same manner "as defen dants who have money enough to buy transcripts." Griffin v. Illinois , 351 U.S. 12, 19 (1956). Indeed, while the Supreme Court did not reach the precise issue, almost twenty ago there were justices who recog nized that this rationale would have to apply to the provi sion of a daily tran script. Britt v. North Carolina , 404 U.S. at 235 n.6 (opinion of Douglas, J.). More recently, it has been held to be "an abuse of discretion to decline to order such [daily] tran scripts . . . ." United States v. Bari , 750 F.2d 1169, 1182 (2d Cir. 1984). __________________ does not ask that this Court order the provision of a transcript of all the case as it progress es. Rather, there will be specific areas which such a transcript will be of critical signifi cance. For example, _______________ antici pates that the State may seek to use some of the same unreli able, pseudo-scientific evi dence which was put before the jury in the last case. Of course, in this case ______________ will hotly contest the validity of such "evidence," both in the course of cross- examining the State's witnesses and in his own case. It will be very important that the defense has access to the precise words used by the prosecu tion witnesses, so that it is possible to impeach them properly. Anything short of a copy of these portions of the record will not be adequate to preserve _________________ rights. Again, it is important to point out that in Britt the United States Su preme Court explicit ly "rejected the sugges tion that in order to render effec tive assistance, counsel must have a perfect memory or keep exhaustive notes of the testi mony given . . . ." Id. at 1015 ( quoting Britt v. North Caroli na , 404 U.S. at 229, 92 S. Ct. at 434). WHEREFORE, _________________ moves that his motion be granted. Respectfully submitted, _____________________________ By:__________________________ CERTIFICATE OF SERVICE I, _____________, attorney for _______________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the ____ day of ______ 20___. Respectfully submitted, ________________________________