Warren Court Incrementalism and Indigent Criminal Appellants’ Right to Trial Transcripts
51 University of the Pacific Law Review 667 (2020)
34 Pages Posted: 23 Dec 2020
Date Written: June 1, 2020
This is an article about forms. The Supreme Court has held that indigent defendants in criminal cases are entitled to the assistance of counsel at trial and on the first appeal as of right, and to provision of transcripts without cost. However, the Administrative Office of U.S. Courts has promulgated Criminal Justice Act Form 24, used by appointed counsel to obtain transcripts for use in preparing a brief on appeal. CJA Form 24 provides that indigent appellants must get permission of a judge to obtain transcripts of jury selection, prosecution and defense opening, prosecution and defense summation, or jury instructions. Since reversible error regularly occurs or is exacerbated in these portions of the trial, not having them is a serious disadvantage in evaluating the soundness of a trial.
Conditioning obtaining a complete transcript on a statement of reasons that it is necessary in a particular case is inconsistent with the Supreme Court's modern decisions on the role of appellate counsel in criminal cases. For example, in 1988 in McCoy v. Court of Appeals of Wisconsin, the Supreme Court explained that an appointed “attorney's obligations as an advocate” require that counsel “provide his or her client precisely the services that an affluent defendant could obtain from paid counsel-a thorough review of the record and a discussion of the strongest arguments revealed by that review." Under modern practice, the trial record is used to identify appellate issues, it is not that an indigent person must identify appellate issues first, in order to obtain the record for review.
In the mid-twentieth century, concerns about cost and delay led Chief Justice Burger and other bar leaders to search for alternatives to verbatim transcripts. But agreed statements of facts and bystander's bills of exceptions never caught on in the federal appeals courts, and the advent of computer-aided voice recognition transcription makes it unlikely that a cheaper or faster substitute will arise. Perhaps in many or most districts, judges sign Form 24's automatically, in which case the ritual of getting the form to the judge and having them send it back is a needless waste of time and taxpayer dollars. It is clear, though, that in some cases, appellants have been denied permission for preparation of a complete trial transcript. In either event, to comply with the Constitution and to facilitate accurate and speedy disposition of federal criminal appeals, CJA Form 24 should be changed to require preparation of a complete trial transcript in every case where a trial conviction is appealed.
Keywords: constititional law, criminal defense, indigent defense, criminal justice act, due process, equal protection
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