IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION FOR COMPLETE RECORDATION OF ALL PRE-TRIAL
AND TRIAL PROCEEDINGS

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16, 17, 19, 20, 22, and 24 of the Louisiana Constitution to order complete recordation of his pre-trial and trial proceedings. In support of his motion, Mr. CLIENT states as follows:
1. This is a capital case. Defendant, an indigent, faces the death penalty.
2. In any capital case, there is a critical need for a complete record. This record should include, but not be limited to:
> a complete transcript of all pre-trial proceedings (with the sole exception of telephone calls reasonably necessary to the establishment of an agenda);

> all bench conferences;

> all discussions of any sort concerning the case which are held in chambers with or without one or more of the counsel in the case;

> all objections and rulings thereon;

> all voir dire and the exercise of challenges for cause or peremptory challenges;

> the race of every venireperson called for jury duty or excused from jury duty for any reason;

> the race of all witnesses;

> all testimony of all witnesses, including a careful record of all exhibits relating to each witness, and the inclusion of copies of all exhibits proffered, submitted and admitted into evidence;

> all arguments, both to the jury and to the trial court;

> all contacts between the jury and any other person, except for contacts explicitly and carefully allowed by the trial court, at a hearing, after consultation with defense counsel;

> any and all questions or written statements made by jurors;

> anything else which may transpire in the course of this case.

A. The need for a total record of the case.
3. In this State, the Louisiana State Constitution, Article 1, Section 19, provides that "[n]o person shall be subjected to imprisonment ... without the right to judicial review based upon a complete record of all evidence upon which the judgment is based." Moreover, the Code requires the following to be recorded:
In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

La. Code Crim. Pro. art. 843.
4. The State bears the burden of establishing a clear and complete record of criminal proceedings. Wright v. Lacy, 664 F. Supp. 1270, 1275 (D. Minn. 1987) (citing Golden v. Newsome, 755 F.2d 1478, 1479 (11th Cir. 1985)).
5. In light of the judge's role as arbiter of the accused's constitutional right to a fair trial, the duty to ensure the complete recordation of the case rests with the court. See United States v. Garner, 581 F.2d 481 (5th Cir. 1978). "The trial judge has a duty to see that the reporter makes a true, complete and accurate record of all proceedings." American Bar Association, Standards Relating to the Trial Judge Section 2.5 (1972) (emphasis supplied). The Louisiana Supreme Court has reached the same conclusion: "It was . . . incumbent upon the trial judge to order that the testimony taken during the trial of this prosecution be transcribed as required by law. It was then incumbent upon him to see that his court reporter deliver same to the Clerk of the Criminal District Court as required by law. It follows that defense counsel was then to be furnished the transcript of the testimony or those portions thereof necessary for the perfection of his bills of exception." State v. Johnson, 256 La. 592, 600-601, 237 So. 2d 389, 392 (La.1970) (verdict in simple escape remanded for completion of court's duty to provide necessary transcript); Dorrough v. State, 437 So. 2d 35, 37 (Miss. 1983) (trial courts should "require, as a minimum, a recording of all facets of a criminal trial") (emphasis supplied).
6. A record must be made of all portions of the proceedings needed to ensure an adequate defense or meaningful 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 chambers conferences); Fountain v. State, 269 Ark. 454, 601 S.W. 2d 862 (Ark. 1980) (bench conferences); Sheffield v. State, 777 S.W. 2d 743, 744 (Tex. App. 1989) (exhibits); Bond v. State, 694 S.W. 2d 622, 623 (Tex. App. 9th Dist. 1985) (closing arguments); Harris v. State, 552 So. 2d 866, 873 (Ala. Cr. App. 1989) (coram nobis proceedings). As the Louisiana Supreme Court has said, "[t]he purpose of the constitutional and codal (La. Code Crim. Pro. art. 843) requirement of recording all proceedings in felony cases is to make it possible for a party to support assignments of error on appellate review. When a portion of the trial has not been recorded, a party cannot perfect assignments of error which occurred during that portion of the trial, and the appellate court cannot review any errors pursuant to La. Code Crim. Pro. art. 920 in order to insure that the trial was properly conducted." State v. Robinson, 387 So. 2d 1143 (La.1980) (citing State. v. Ford, 338 So. 2d 107 (La.1976)).
B. Transcription of Pre-trial proceedings.
7. In Roberts v. LaVallee, 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 preliminary 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. Indeed, the same right is recognized in our law. See La. Code Crim. Pro. art. 294. (West 1992) ("Section C. Upon motion of the state or defendant, a transcript of the preliminary examination proceedings may be made. The cost of the transcript shall be paid by the party making the motion, unless the party is an indigent defendant"); La. Code Crim. Pro. art. 295. (West 1992) ("Preliminary Examination. * * * The transcript of the testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceeding for the purpose of impeaching or contradicting the testimony of such person as a witness").
8. 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 transcript of prior proceedings 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)). See also Fisher v. State, 532 So. 2d 992, 999 (Miss. 1988) ("[t]here can be no doubt . . . that the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense"); State v. Johnson, 261 La. 620, 260 So. 2d 645, 649 (1972); Carter v. State, 156 Ga. App. 633, 275 S.E.2d 716, 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); Matter of Bullabough, 89 N.C. App. 171, 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).
9. Applying Roberts and Britt, many courts have ordered the transcription 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, 184 Colo. 238, 519 P.2d 941, 943 (Colo. 1974); Hawkins v. State, 486 P.2d 743 (Okla. Cr. App. 1971); People v. Montgomery, 18 N.Y. 2d 993, 224 N.E.2d 730 (1966); Graham v. State, 296 Ark. 400, 757 S.W.2d 538, 541 (Ark. 1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518, 524 (Ark. 1988).
WHEREFORE, Mr. CLIENT moves that his motion be granted, and that all proceedings be recorded, both prior to and during the trial.
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