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Public hearing set for proposal to change appellate record rules

The Wisconsin Supreme Court will be hearing public testimony on a proposal to change some of the state’s rules involving the appellate record.

The Judicial Council, an independent body of judges, lawmakers and lawyers charged with recommending rule changes to the Supreme Court and state Legislature, is proposing changes to procedures used to supplement the record on appeal, as well as rules concerning sealed documents, transcripts of certain recordings and pre-sentence investigation reports.

The proposal calls for allowing appellate courts to provide access to pre-sentence investigation reports that are already in the record and requiring parties to submit transcripts of deposition recordings 10 days before a proceeding.

The changes, according to the council’s memo, are meant to clarify current rules and make the court more efficient.

The council filed the proposal on May 26. In response to requests from the state Department of Justice and a former State Bar president, the council’s appellate-procedure committee has been studying the proposed changes since 2014

So far, only one person has weighed in on the proposal. Wisconsin Court of Appeals Chief Staff Attorney Jennifer Andrews filed a letter in November opposing a provision concerning pre-sentence investigation reports.

When those reports are made part of the record on appeal, access is granted only to the court, attorneys representing the state, attorneys representing defendants and pro se defendants. The council is proposing giving the Court of Appeals the authority to give pro se defendants access to pre-sentence investigation reports once the record has been transmitted to the appellate court.

The main flaw in the provision, Andrews writes, is that it makes it mandatory for the appellate courts to grant pro se criminal defendants’ requests to access pre-sentence investigation reports, even when the reports are included in the record but are not relevant to an appeal.

Andrews, in her letter, wrote that the provision runs contrary to case law that declares circuit courts, not appellate courts, the gatekeepers of pre-sentence investigation reports.

Andrews is suggesting that the court not adopt that provision of the proposal. If the advice is heeded, appeals courts’ practice will remain the same: pro se criminal defendants  will continue having to request access from circuit courts, and appellate courts will have to send records back to circuit courts, which could then decide whether pre-sentence investigation reports need to have parts blacked out and what kind of access defendants should have.

The high court has scheduled a public hearing on the proposal for 9:30 a.m. on Jan. 16 in the Supreme Court Hearing Room. Andrews and representatives of the council will appear to field questions from the justices.


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