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Generally, if an appeal involves issues of fact or evidence, a transcript of at least part of the proceedings in the trial court is necessary.[i]  Fed. R. App. P. 10(b)(2) provides that the appellant must include in the record a transcript of all evidence relevant to such finding or conclusion, if an appellant intends to urge on appeal that a finding or conclusion by a federal district court is unsupported by the evidence or is contrary to the evidence.  Within the discretion of the court of appeals, the failure of the appellant to provide a transcript is proper ground for dismissal of the appeal.[ii]  Failure to provide the appellate court with a transcript will frequently preclude appellate review, unless the parties have stipulated to the relevant facts.[iii]

The appellant is required by rule to request or order preparation of a transcript within a certain time after the conclusion of proceedings in the trial court or the filing of a notice of appeal.[iv]  Although a court may hold that substantial compliance with the rule requiring appellant to request a transcript within a particular time is sufficient, failure to timely request the transcript may result in dismissal of the appeal.[v]

Fed. R. App. P. 10(b)(1) provides that in an appeal in a federal case, the appellant must either order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, or file a certificate stating that no transcript will be ordered.  It must be taken within 10 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Fed. R. App. P. 4(a)(4)(A), whichever is later.  Pursuant to Fed. R. App. P. 10(b)(1)(A), an order for a transcript must be in writing.  It must state that the cost of the transcript is to be paid by the United States under the Criminal Justice Act (18 U.S.C.A. § 3006A).  Furthermore, Fed. R. App. P. 10(b)(1)(A)(iii) provides that an appellant who orders a transcript must file a copy of the order with the clerk of the district court within the same 10-day period.

The appellant may order only those parts of the transcript necessary to the disposition of the appeal, where a complete transcript of all the proceedings below is not necessary to resolve the issues presented on appeal.  The appellee may designate additional parts as necessary to the appeal, where the appellant has designated only certain parts of the transcript for this purpose.[vi]  In federal court, where the appellant does not order a complete transcript, s/he must file a statement of the issues that the appellant intends to present on the appeal within the 10 days provided in Fed. R. App. P. 4(a)(4)(A).  Pursuant to Fed. R. App. P. 10(b)(3)(A), s/he must serve on the appellee a copy of both the order or certificate and the statement.  Fed. R. App. P. 10(b)(3)(B) provides that if the appellee considers it necessary to have a transcript of other parts of the proceedings, s/he must file and serve on the appellant a designation of additional parts to be ordered within 10 days after the service of the order or certificate and the statement of the issues.  Fed. R. App. P. 10(b)(3)(C) provides that the appellee may within the following 10 days either order the parts or move in the district court for an order requiring the appellant to do so, unless within 10 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee.  The court of appeals may dismiss the appeal, if the appellant fails to comply with the foregoing requirements.[vii]

Pursuant to Fed. R. App. P. 10(b)(4), at the time of ordering a transcript, an appellant in a federal case must make satisfactory arrangements with the reporter for payment of the cost of the transcript.  28 U.S.C.A. § 753(f) provides that district courts prescribe fees for the preparation of transcripts, subject to the approval of the Judicial Conference.

Failure to include portions of a transcript relating to particular issues may be treated by the court as a waiver of those issues on appeal.[viii]  Moreover, submission of a transcript which is silent as to the material facts or evidence on a particular point will result in the affirmance of the trial court’s ruling on the matter.[ix]  Generally, the drastic sanction of dismissal should not be imposed for minor infractions of the appellate rules.[x]  If the absence of a transcript precludes meaningful review, an appellate court has no alternative but to dismiss an appeal.[xi]  The circumstances of an appellant’s failure to submit a transcript within the time allowed may constitute excusable neglect justifying relief from the trial court’s order dismissing the appeal, under a jurisdiction’s procedural rules.[xii]

For the purposes of appellate rules governing the preparation and use of substitutes for transcripts, if an official record of the proceeding exists, it may be deemed unavailable, depending upon such matters as:

  • the ability of the appellant to pay for its transcription;
  • the willingness of the stenographer to make the record available, or
  • any other relevant consideration.[xiii]

The parties to an appeal may stipulate to the relevant facts for the purposes of the appeal, in the absence of a transcript of trial court proceedings.[xiv]  If the stipulation is sufficiently inclusive of relevant facts, the appeal will be resolved on its merits.[xv]

Fed. R. App. P. 10(d) provides that the parties in a federal case may prepare and sign a statement in lieu of the record on appeal, of the case showing how the issues presented by the appeal arose and were decided by the district court.  The statement must be approved by the district court, and be certified to the court of appeals as the record on appeal.  Thereafter, the agreed statement is to be transmitted by the clerk of the district court to the court of appeals within the time in which the record must be transmitted.  In place of the appendix to the parties’ briefs, copies of the agreed statement may also be filed.

The lack of a complete transcript does not automatically warrant reversal and the ordering of a new trial.[xvi]  The appellant must make a specific allegation of error in the proceedings below that the appellate court will be unable to review effectively by using a substitute for the transcript.[xvii]  The appellant must either follow the procedures specified by the applicable rules to have the record settled and approved, or make a showing that such procedures would fail to produce an adequate substitute for the record, where the court reporter is unable to transcribe a portion of the record.[xviii]  A trial judge may certify the determination to the appellate court, which may then remand for a motion for a new trial, if s/he is of the opinion that a satisfactory record cannot be obtained following the rules for settling the record.[xix]

Unless it is shown that the missing portion of the record is substantial and crucial, the fact that the transcription by the substitute reporter contains omissions will not entitle the accused to a new trial, where the notes of the court reporter attending a criminal trial are transcribed by another reporter due to the death or disability of the reporter attending the trial.[xx]  The determination on whether the transcription of a deceased or disabled reporter’s notes by another reporter will result in a transcript which is adequate for the purposes of review is within the discretion of the trial court.[xxi]

The impossibility of obtaining a transcript due to the death or disability of the reporter attending the trial may justify the grant of a new trial where an adequate record of the trail cannot be reconstructed by means of a bill of exceptions or other means in civil cases.[xxii]  A new trial will be granted, where the death or disability of the reporter attending a criminal trial results in the inability of the accused to obtain a transcript for use in a timely appeal.[xxiii]  However, the failure of the accused to make a request for a transcript within the time prescribed by statute for the taking of an appeal may warrant a different result.[xxiv]  If the responsibility for the production of a transcript for the purposes of an appeal lies with the state, a new trial may be granted years after the entry of the judgment of conviction if transcript cannot be obtained.[xxv]

[i] Sanford v. Sanden, 333 N.W.2d 429 (N.D. 1983).

[ii] RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 31 Fed. R. Serv. 3d 1143 (5th Cir. 1995).

[iii] Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986); Wood v. Wood, 865 P.2d 616 (Wyo. 1993).

[iv] Hughes v. Morgan County, 452 N.E.2d 447 (Ind. Ct. App. 1st Dist. 1983);

[v] Swain v. Swain, 565 N.E.2d 1134 (Ind. Ct. App. 5th Dist. 1991); Ferguson v. Williams, 101 N.C. App. 265, 399 S.E.2d 389 (1991).

[vi] Jackson v. Washington State Criminal Justice Training Com’n, 43 Wash. App. 827, 720 P.2d 457 (Div. 3 1986).

[vii] U.S. v. Alerta, 96 F.3d 1230, 36 Fed. R. Serv. 3d 139 (9th Cir. 1996)

[viii]State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998)

[ix] Powell v. Khodari-Intergreen Co., 334 N.W.2d 127 (Iowa 1983)

[x] Coats v. Pierre, 890 F.2d 728, 57 Ed. Law Rep. 389, 15 Fed. R. Serv. 3d 583 (5th Cir. 1989).

[xi] Birchler v. Gehl Co., 88 F.3d 518, 35 Fed. R. Serv. 3d 970 (7th Cir. 1996).

[xii] Anuforo v. Dennie, 119 N.C. App. 359 (N.C. Ct. App. 1995)

[xiii] Beef N’ Bird of America, Inc. for Use and Benefit of Galbreath v. Continental Cas. Co., 803 S.W.2d 234 (Tenn. Ct. App. 1990).

[xiv] Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986)

[xv] Starks v. Starks, 423 So. 2d 452 (Fla. Dist. Ct. App. 1st Dist. 1982)

[xvi] Murphy v. St. Paul Fire & Marine Ins. Co., 314 F.2d 30, 7 Fed. R. Serv. 2d 1226 (5th Cir. 1963);

[xvii] Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210, 16 Fed. R. Serv. 3d 528 (9th Cir. 1990);

[xviii] Bergerco, U.S.A. v. Shipping Corp. of India, Ltd., 896 F.2d 1210, 16 Fed. R. Serv. 3d 528 (9th Cir. 1990).

[xix] Hydramotive Mfg. Corp. v. Securities and Exchange Commission, 355 F.2d 179 (10th Cir. 1966).

[xx] U.S. v. Pilling, 721 F.2d 286, 14 Fed. R. Evid. Serv. 1162 (10th Cir. 1983).

[xxi] Thell v. Ramus, 245 Minn. 409, 72 N.W.2d 618 (1955).

[xxii] Pacific Nat. Fire Ins. Co. v. Irmiger, 254 Wis. 207, 36 N.W.2d 89 (1949).

[xxiii] People v. Harrell, 115 A.D.2d 943, 497 N.Y.S.2d 518

[xxiv] People ex rel. Bergman v. Morhous, 264 A.D. 978, 37 N.Y.S.2d 177

[xxv] Com. v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973).

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