Submission of Evidence "For Reference Only"

[jefsanger]

If you plan on making an argument that pertains to any of the content in the traffic survey, then I'd suggest that you have the record include the survey. I can only guess that Quirky originally told you to skip the survey, because the it was never physically produced in the courtroom. However, as this thread has progressed, we've discussed a number of issues that the appellate court can only rule on if the survey is part of the record.

That makes sense to me too. Do you know the format for having evidence added to the record? Do I have to hunt down the evidence, petition the court to augment and include the document in question? Or does the respondent court have to produce it from the evidence at trial?

[That Guy]

If you plan on making an argument that pertains to any of the content in the traffic survey, then I'd suggest that you have the record include the survey.

That makes sense to me too.

It makes absolute sense. And on a side issue, why not post a copy of the survey so we can pinpoint which areas it may be lacking!

Do you know the format for having evidence added to the record? Do I have to hunt down the evidence, petition the court to augment and include the document in question? Or does the respondent court have to produce it from the evidence at trial?

I think we're talking about two separate matters here:

The rule related to Augmenting the record in Criminal Appeal and although it directs you to CRC 8.155 as TMN suggested, it actually start out with CRC Rule 8.340. Augmenting or correcting the record in the Court of Appeal. Under that rule, subsection

(c) Augmentation or correction by the reviewing court

At any time, on motion of a party or on its own motion, the reviewing court may order the record augmented or corrected as provided in rule 8.155. The clerk must send any document or transcript added to the record to all those who are listed under (a)(1).

I still don't see how you could be expected to provide a document you'd never seen or touched before! So...

First:

Rule 8.155. Augmenting and correcting the record

(a) Augmentation

(1)At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include:

(A)Any document filed or lodged in the case in superior court; or

(B)A certified transcript-or agreed or settled statement-of oral proceedings not designated under rule 8.130. Unless the court orders otherwise, the appellant is responsible for the cost of any additional transcript the court may order under this subdivision.

(2)A party must attach to its motion a copy, if available, of any document or transcript that it wants added to the record. The pages of the attachments must be consecutively numbered, beginning with the number one. If the reviewing court grants the motion it may augment the record with the copy.

(3)If the party cannot attach a copy of the matter to be added, the party must identify it as required under rules 8.122 and 8.130.

I don't know what the contents of the notice you received and asked about on 5/12/2012 or how you concluded it was YOU who has to fulfill the request to augment the record, but I still don't think the copy you got from LADOT ??is?? the document that should fill that request! The document that would fulfill this request, IMO, is defined under 8.155(a)(1)(A) as a "document filed or lodged in the case in superior court"; and under these circumstances, the trial court is responsible for that. Have them go fishing for a document the judge allowed to be introduced "by reference". In the alternative, I think they may be forced to having to try and identify it as described in 8.155(a)(3) but even then, good luck Mr Judge since he never even bothered to look at it (at least the records makes no showing that he did)!!

Now, if there are issues with the actual survey that exist for this roadway that you want to discuss and bring up as possible grounds for appeal, then you should IMO submit a copy of the survey you got from LADOT as part of your own motion to augment the record under 8.155(a)(2).

But that's just me!

[jefsanger]

I agree TG. Now to word the motion to augment properly. How does the following sound to you guys?
-----------------

Pursuant to Rule 8.155(a) of the California Rules of Court, Appellant respectfully requests that the appellate court order the addition of the Traffic and Engineering Survey performed for the section of street involved in this case. The record states that a document proported to be a “valid survey from the portion of the road in question” was “received by reference.”(Rep. transcript p.2,3) Appellant feels it is critical to his appeal that this document be made part of the appellate record and respectfully requests the court grant his request.

[That Guy]

I agree TG. Now to word the motion to augment properly. How does the following sound to you guys?
-----------------

Pursuant to Rule 8.155(a) of the California Rules of Court, Appellant respectfully requests that the appellate court order the addition of the Traffic and Engineering Survey performed for the section of street involved in this case. The record states that a document *purported to be a “valid survey from the portion of the road in question” was “received by reference.”(Rep. transcript p.2,3) Appellant feels it is critical to his appeal that this document be made part of the appellate record and respectfully requests the court grant his request.

* Fixed that for you!

I think that sounds good. I'd even throw in a few case law citation, you know mention some names... I also think it is critical for you to differentiate between what was presented by the officer (which, as I see it is a different survey that is the court's responsibility, not yours) and what is being presented by you herein, which could be either:
(a) a certified copy of the actual most recent (i.e. current) survey from LADOT.
(b) a certified copy of the survey that the court may have on file!

I would obtain a copy of both and decide which one is more lacking (and we know they are both just as invalid). I would likely pick (a)!

[themadnorwegian]

I also think it is critical for you to differentiate between what was presented by the officer (which, as I see it is a different survey that is the court's responsibility, not yours) and what is being presented by you herein

The only catch with offering two different surveys is that the appellate court isn't allowed to consider new evidence, and 8.155(a)(1)(A) and 8.122(b)(3) both refer to documents that were "filed or lodged in the case in superior court" and "any exhibit admitted in evidence, refused, or lodged." I think you want to request a copy of the actual exhibit be sent to the appellate court using the procedure described in 8.155 and 8.122, or you can have the original exhibit sent to the appellate court using the procedure described in 8.224. The thing that I find odd is that the Infraction appeals process doesn't seem to have a way to allow the appellant to designate parts of the record, but this is standard practice for a civil appeal. I'm not sure what the usual manner for getting exhibits listed on the clerk's transcript would be in a criminal case.

[jefsanger]

TG and TMG,

Tweaked my motion a bit, adding some verbage suggesting the survey may not have been present in court.

Pursuant to Rule 8.155(a) of the California Rules of Court, Appellant respectfully requests that the appellate court order the addition of the Traffic and Engineering Survey performed for the section of street involved in this case. The record states that a document proported to be a “valid survey from the portion of the road in question” was “received by reference.”(Rep. transcript p.2,3) Apellant refers to the survey as "proported" because at no time during the trial did the judicial officer or the defendant examine said survey. Appellant feels it is critical to his appeal that this document be made part of the appellate record, if it in fact exists in the trial court records as an exhibit for this case, and respectfully requests the court grant his request.

[That Guy]

The only catch with offering two different surveys is that the appellate court isn't allowed to consider new evidence, and 8.155(a)(1)(A) and 8.122(b)(3) both refer to documents that were "filed or lodged in the case in superior court" and "any exhibit admitted in evidence, refused, or lodged." I think you want to request a copy of the actual exhibit be sent to the appellate court using the procedure described in 8.155 and 8.122, or you can have the original exhibit sent to the appellate court using the procedure described in 8.224. The thing that I find odd is that the Infraction appeals process doesn't seem to have a way to allow the appellant to designate parts of the record, but this is standard practice for a civil appeal. I'm not sure what the usual manner for getting exhibits listed on the clerk's transcript would be in a criminal case.

Good catch TMN... One of the most basic rules for appealing... And it simply slipped my mind!

TG and TMG,

Tweaked my motion a bit, adding some verbage suggesting the survey may not have been present in court.

Pursuant to Rule 8.155(a) of the California Rules of Court, Appellant respectfully requests that the appellate court order the addition of the Traffic and Engineering Survey performed for the section of street involved in this case. The record states that a document proported to be a “valid survey from the portion of the road in question” was “received by reference.”(Rep. transcript p.2,3) Apellant refers to the survey as "proported" because at no time during the trial did the judicial officer or the defendant examine said survey. Appellant feels it is critical to his appeal that this document be made part of the appellate record, if it in fact exists in the trial court records as an exhibit for this case, and respectfully requests the court grant his request.

You may want to hold off... It would be in your best interest if there is no survey to produce. You are correct in stating that one was not reviewed by the judge (*) however, it sounds like the motion you're making will be overruled so you're wasting energy for nothing.

I'll repeat a request I made above...

It would be interesting to see the letter you received. So can you please redact personal information and post a copy of the letter.

It would be interesting to see the survey you've obtained. So can you post a copy of that as well?

Thanks.


*: I'll still stick to my opinion that you should have objected and requested it be physically shown and that you be given the opportunity to review it - and no you would not have given up much by doing so (especially if as you claimed, the critical speed is 48 instead of 47 and assuming it lacks any justifiable reduction it still does not validate the posted speed), instead, you would have had the opportunity to specifically refute why it does not justify the limit.

[themadnorwegian]

The California Appellate Project runs websites for each appellate district that have samples and information about common scenarios than inexperienced counsel encounter in the appeals process. The LA County Project's website is here, but its sample motions still reference the rules of court by their old numbers. The Sixth District's website has an explanation of the different motions, as well as samples. Among the samples is a motion to augment the record. This might be a useful reference when drafting your own motion.

Reading the Rules of court a bit more: if the exhibit you want to transmit to the appellate division is a documentary exhibit, and is 10 pages or less, you can simply attach it to your brief using the procedure described in 8.204(d). This would allow you to bypass the more complicated procedure in 8.224; however, it assumes that you're able to get a copy of the exhibit yourself.

[jefsanger]

The California Appellate Project runs websites for each appellate district that have samples and information about common scenarios than inexperienced counsel encounter in the appeals process. The LA County Project's website is here, but its sample motions still reference the rules of court by their old numbers. The Sixth District's website has an explanation of the different motions, as well as samples. Among the samples is a motion to augment the record. This might be a useful reference when drafting your own motion.

Reading the Rules of court a bit more: if the exhibit you want to transmit to the appellate division is a documentary exhibit, and is 10 pages or less, you can simply attach it to your brief using the procedure described in 8.204(d). This would allow you to bypass the more complicated procedure in 8.224; however, it assumes that you're able to get a copy of the exhibit yourself.

I believe it is a documentary exhibit but Im not sure. Id hate to make a mistake and would feel better about it asking for the document via the appellate court. That way it would have to be the exhibit entered into evidence at trial. Survey or whatever it is. I cannot get a copy of the exhibit myself I have asked. The lower court appeals clerk insists I go through the appeals court motion to request it. I have the traffic survey here, but is it exhibit 1?

TG.

I will copy the documents they sent me and post. It isnt a letter its the clerks transcript and a copy of the reporters transcript.
The survey i have here and will post too. I am sure you are correct I did in fact object to the survey but didnt ask specifically to see the survey.
I had my copy and didnt consider the importance of seeing his. It just didnt register at the time in the heat of battle.

[That Guy]

Id hate to make a mistake and would feel better about it asking for the document via the appellate court.

The mistake you would be making, IMO, would be to request it through the appellate when it appears to be that the appellate is requesting it! And I am still unsure why you are concerning yourself with a request from the appellate to the trial court to provide a copy of a document from the record. If the court is able to obtain a copy, then that issue is dealt with... If the court is unable to provide a copy, then that is there problem. But it is also obvious that they can contact the officer to request a copy of whatever it was he had with him, and then they will provide it to the appellate.

Now, regardless of whether a copy is submitted to the appellate or not, your grounds for appeal aren't related to what that document contained or what it lacked... After all, if you never looked at it, how do you know what it had or didn't have? Your grounds for appeal are based on a claim (and other people's suggestions) that the officer must produce the survey in court and allow you the opportunity to examine it.

So going back to my suggestion that you need to differentiate between the survey the officer had and what you are presenting, skip that part....

I cannot get a copy of the exhibit myself I have asked.

Again, it isn't your issue!

The lower court appeals clerk insists I go through the appeals court motion to request it.

I would have you do my job for me too if you accepted responsibility for it!

I will copy the documents they sent me and post. It isnt a letter its the clerks transcript and a copy of the reporters transcript.

So again, where did you get the following from (about understanding that YOU needed to augment the record):

Posted on 05 12 2012 @ 9:03pm

I understand I need to augment the record with a copy of the survey which I have here.

I think that is where all this recent confusion started. And it is also the reason why I requested that you upload a copy of whatever it is you received on or about 05 12 2012.