March 9, 2017

Supreme Court upholds presumptive right to complete free transcript, but holds violation of the right can be harmless

In People v. Reese, which was argued on the January calendar, the Supreme Court today holds that the constitutional right that an indigent criminal defendant — facing a retrial after a mistrial — presumptively has to a free transcript of trial court proceedings includes a transcript not only of testimony, but also of opening statements and closing arguments.  A divided Court of Appeal, finding persuasive the dissent in a divided 2004 Ninth Circuit opinion in a habeas corpus proceeding, found the defendant had to make a showing of why he needed a transcript of more than testimony.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar disagrees, concluding instead it is the prosecution that has the burden of rebutting the presumption that a full transcript is necessary for the defense on retrial.  The court says that “[i]t is simply inconsistent with the purpose of [equal protection guarantees] to distinguish between transcripts of witness testimony and transcripts of counsel’s statements — both of which a wealthy defendant is certain to purchase — when determining whether [the] presumption applies.”

Although the total denial of a transcript requires an automatic reversal, the court today holds that, “when the denial of the right to a previous trial transcript is less than total, appellate courts will often have little difficulty conducting harmless error review.”  And the court finds the denial to be harmless in the case before it today, therefore affirming the judgment of the Second District, Division Eight, Court of Appeal.

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