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Cover Story
July-August 2008

Get it in the record!

Andrea Westerfeld

Assistant Criminal District Attorney in Collin County

Top 10 tips from the “warranties and repairs department” (the appellate division) for preserving the record

“Let the record reflect …” Most of us have spoken those words in court, but unless you handle appeals, it is difficult to understand just how important what you put in the record can be. As a transfer from the trial division to handling “warranties and repairs” in appeals, I was surprised at how many simple ways prosecutors can make a clear, defensible appellate record that you simply might not think of in the heat of trial. This short guide offers several ways to preserve a clear record that will have your appellate section thanking you and help the appellate courts know exactly what went on during your trial.

1

Record “off the record” conversations. This tip sounds like a contradiction in terms, but it is really very simple. Quite a bit of what happens in any trial goes on “off the record,” whether in quick conferences at the bench, discussions in the judge’s chambers, or conversations in the courtroom before the reporter arrives. There are definitely benefits to having informal conversations without having to drag the court reporter in or dismiss the jury to have a recorded hearing, but if something important occurs during those conversations, it is vital to get that on the record at your next opportunity.

If you had a bench conference in the middle of questioning a witness where the defense attorney withdraws his objection, the next time the jury is dismissed and you have a moment, just say, “Your Honor, for the record, we had a bench conference during my re-direct of Susie Smith, and Mr. Matlock withdrew his hearsay objection.” Without putting this point on the record, the defense could raise this point on appeal.

2

Describe visual aids. Maps, PowerPoint, and other displays are all wonderful tools for making matters clearer to the jury. Unfortunately, things are not very clear to the appellate court when all the judges read is, “I saw the defendant traveling down this road. He turned here, and I intercepted him here.”

If your witness gives a similar narration when drawing a map or tracing his route, you must find a way to translate his actions onto the record. You may choose to be explicit: “Let the record reflect the witness is moving a laser pointer from east to west along the area marked as Main Street on the map.” If you feel that is too jarring to the jury, question the witness more specifically. “So you were traveling on Main Street? Which street did you turn onto?”

If you use PowerPoint or other tools to supplement a witness’s testimony, consider introducing a paper copy of the slides as an exhibit for record purposes after the trial is complete. Be sure to include any “before and after” slides—if your initial slide was an autopsy photograph and the medical examiner placed arrows or makings on it during his testimony, introduce copies of both the original slide and the marked version.

3

Describe demonstrations. Dem-onstrations and reenactments can have a powerful effect on the jury. The victim showing the jury how the defendant touched her or the defendant’s unrealistic demonstration of how he accidentally shot the victim can be the turning point in convincing the jury to convict. But there may be sufficiency issues on appeal where the appellate court cannot tell precisely where or how the victim was touched. You can solve this problem by describing the demonstration into the record.

For example:
Q. Did Susie actually demonstrate with her fingers what she meant by the pinching of her tee-tee?
A. Yes, she did that. [indicating]
Q. For the record, the witness is putting her thumb and forefinger together.

Demonstrations are also important where your child abuse victim is using an anatomical doll or drawing to indicate where the defendant touched her. After the victim has demonstrated with the doll, you should state into the record, “Let the record reflect that Susie pointed to the doll’s vagina.”

4

Don’t forget about gestures and non-verbal communication. This tip is a corollary of the last two rules, but it is important enough to repeat. They say that 90 percent of communication is non-verbal, so if you leave that out of the record, you are leaving the appellate court to decide your case based on only 10 percent of what happened at trial. It may be rare, but cases can turn on whether a witness’s gesture is described for the record.

In a motion to suppress, the officer may testify that the defendant “went like this” at him, and the officer entered the house. Without describing what “went like this” means, your case may not survive appeal. But if you clarify the defendant’s actions, you can clearly establish the consent to enter for the appellate court as well as the trial court.

For example:
Q. How did the defendant motion for you to come in?
A. He went like this, so I entered.
Q. For purposes of the record, you have your hand being extended out and coming back towards you. What did his gesture mean to you?
A. That I could come in the house.

It is impossible to describe every time non-verbal communication is important, so try to keep an ear out for when your witnesses (or the attorneys) mention something that will not be visible on paper. It can mean a lot to your child sexual assault case when you clear up on the record that the police did not just find the victim’s picture “in here,” they found it tucked inside the case of a pornographic video.

And of course, don’t forget about, “Let the record reflect that the witness pointed to the defendant.”

5

Don’t forget about distance and size. When your witness is describing the distance between objects or people, he frequently uses distances in the courtroom that are easy for everyone present to understand, such as “from here to the table.” But appellate courts do not take field trips, so the justices will have no idea how large your courtroom is. Be prepared to add distances to clarify that “from here to there” is really 6 feet.

The same rule applies to sizes of objects, which can be particularly important when establishing that a knife was a deadly weapon. If your witness testifies that the knife was “about this long,” be prepare to estimate or even measure the distance yourself. If all else fails, simply have the witness draw the blade and introduce that drawing into evidence.

6

Make sure all admonishments are on the record. You know that the defendant has a long familiarity with the justice system and knows exactly what he is getting into with this plea bargain. His attorney knows that he has talked to the defendant about all the consequences and rights. And the judge knows that the defendant has been sitting in the courtroom long enough to hear six other pleas with full admonishments in each one. But all the appellate court knows is that the record shows the defendant stood up and pled guilty. If you do not make certain that the defendant is given all admonishments on the record, you are inviting a reversal on habeas for involuntary plea. So listen to make sure the defendant is admonished on the record and discretely remind the judge if he is not. Cases have been reversed on appeal when the defendant, whom everyone in the courtroom knows was born and raised in Wisconsin, is not admonished about deportation. And do not forget that admonishments must be given on all guilty pleas, including slow pleas to the jury.

A similar rule applies if the defendant chooses to waive his constitutional rights. Whether it is the right to a trial or the right not to testify, make sure that the defendant is admonished on the record so he cannot later complain about it on appeal.

7

Obtain an interpreter or waive the right on the record. The Confrontation Clause requires the court to provide an interpreter for a defendant who cannot speak English. The defendant may waive this right, but he must do so affirmatively. Merely not requesting an interpreter is not enough. Therefore, if your defendant does not speak English well or seems to have trouble understanding, have the judge question the defendant on the record and determine if he needs an interpreter or if he wants to waive his right. If the record indicates that the defendant did not understand English and did not have an interpreter, the case is coming back for another trial.

Be wary when the defense attorney offers to translate. While doing so may work in an agreed plea, during voir dire or trial the defense attorney cannot do his job and translate for the defendant the entire time. Insist on a separate interpreter when necessary.

8

Make the record clear in Batson hearings. Appellate courts are becoming more active in evaluating Batson claims, so just giving one quick reason for striking a juror may no longer be enough on appeal. The best way to avoid problems down the road is to simply make a record of every factor you considered in striking a particular juror, so that if one factor is discredited you still have something to stand on. In particular, remember to describe physical mannerisms such as crossed arms, eye-rolling, a disrespectful tone of voice, or a marked difference in how the juror spoke to the State and the defense. These are factors that the trial court will recall when deciding if you have provided race-neutral reasons for striking, so you should be sure the appellate court is able to consider them as well.

Another way to protect yourself is to compare the juror you struck with other similar strikes, such as, “The State struck Juror Four because he is a young man and we’re concerned he will be lax on drug enforcement. We struck Juror 11, who’s a similar age, for the same reason.” You can also compare jurors you struck with others who gave similar answers but were not struck, a practice that has been of particular concern to some appellate courts. Explain the differences between the two, such as, “We’re striking Juror Two because of her opinion that drug laws are too harsh. Although Juror Eight gave a similar answer, we don’t think that opinion will affect him here because his family was recently a victim of drug-related crime.”

It can be valuable to note the races of the jurors who were not struck as well as the races of those who were, if you are challenged. This information is usually not reflected in the record, but the knowledge that you struck two minority jurors but left three on the jury is obviously helpful on appeal. Do not simply read a list of juror races into the record! This is inappropriate and unnecessary. Focus on what was specifically challenged.

9

Speak up if the defense mischaracterizes events. When an attorney makes a statement in open court without being contradicted or disputed by opposing counsel or the judge, the statement provides some evidence of the fact asserted. This means that if a defense attorney makes a statement that is detrimental to your case and you stay silent, the appellate court may find the defense attorney’s statement to be true. For example, if the defense objects that a juror was sleeping during the case, the prosecutor should say that she was watching the jury and never saw any jurors asleep. Even if all sides are aware of the issue or the trial court immediately overrules the objection and moves on, it is important to establish the true facts in the record.

This rule balances out the other rules for preserving the record. If the defense describes a witness’s gesture or demonstration for the record but gets it wrong, the prosecutor should be aware of and object to the discrepancy. Otherwise, the defendant’s gesture waving the police into his home could be turned into waving them away.

10

Special advice for dealing with child witnesses. Although the rest of these tips apply in every case, prosecutors should be especially aware of them when dealing with child witnesses. Children do not describe things as precisely as adults and may have a difficult time in the courtroom. But it is just this demeanor that can be most convincing to the jury. You should try to include as much information as possible about a child’s demeanor on the record, such as when the young victim of sexual assault turns the witness chair around so she does not have to look at the defendant while testifying. To make it less jarring, you can include this information through questions such as, “Susie, did you just move your chair? Why did you do that?”

Children are also more likely than other witnesses to use gestures to get their meaning across, so the tips on non-verbal communication are very important. A child’s gesture pointing to exactly what part of the body is her “front private” may make the difference in a sufficiency review.

Children also may not be able to answer a question out loud, whether due to fear of the defendant or simply of the courtroom. You may consider asking the child to write the name of the person who touched him or mark on a drawing of a body where he was touched. If you do, be sure to mark the paper as an exhibit and introduce it into evidence so the appellate court can consider it.

Bonus tip: Speak clearly! Because “top 11” lists don’t sound as good as top 10 lists, just consider this one a bonus. Make friends with your court reporters and ask to look over a transcript of one of your trials sometime. It can be horrifying to see how your eloquent arguments and devastating cross-examinations translate on the record! Always be aware that the court reporter is trying to transcribe the words of everyone in the courtroom, so try to make it easier on her to record just how brilliant you are. Remember to speak slowly and clearly, and do not talk over witnesses—or neither of you will be transcribed correctly. Be sure to clarify “uh-huh” or a head shake as “yes” or “no” answers, and pause between questions and answers to make sure the record does not read like one long question. Allow extra time for witnesses who have a hard time speaking or are using interpreters. Even though those in the courtroom may understand the gist of the testimony, the reporter has to record every word.

Conclusion

There are far more tips about preserving the record than could be put into a short article. But these guidelines should carry you through the most common situations. A good rule of thumb is to listen to your case as well as see it. Consider what the court reporter is able to record and what you can say to make the true situation clear to the appellate courts. Your appellate section will thank you.