The Importance of Making a Record in a Criminal Case

When representing an individual in a criminal case, there are many levels that a defense attorney must protect their client. While it is important for a defense attorney to protect his client in all present court proceedings and obtain the best possible outcome, a defense attorney also must protect the client in the event that an appeal is filed.

The specific method of protecting a client on the appellate level is making a record. Every time a client is in court with their attorney, a record of that court proceeding is made by the court reporter in the courtroom.  It is then transcribed into a document which is called a transcript.  A transcript is reviewed by appellate attorneys to determine if there are substantive or procedural issues that warrant a reversal of a conviction or sentence.  Making a record is important in all phases of a criminal case.  Because issues could arise anytime during pretrial proceedings, trial and post-trial.  Additionally, every motion and pleading that is filed by the defense attorney and the prosecution also becomes a part of the record.  These motions and pleadings are also available to the appellate attorney when analyzing a client’s case for procedural or substantive issues.

The purpose of this level of protection is to make a record for a client in the event the client is convicted at trial. A record is made to help the client on appeal by preserving issues and overcoming procedural bars.  Not only does this method apply to trial or pretrial issues that occur on the record, it also can help the client when there is a change in the law after his or her conviction.

A particular example of a situation like this can be Illustrated in the cases of Johnson v. United States and Welch v. United States. In Johnson, The U.S. Supreme Court ruled that the residual clause of the ACCA (Armed Career Criminal Act) was unconstitutional.  The residual clause of the ACCA allowed for a sentence enhancement for illegal possession of a gun by a felon from a maximum sentence of ten years to a minimum sentence of fifteen years when an individual had three prior convictions for violent crimes or serious drug offenses.

As a result of the U.S Supreme Court’s ruling, many federal inmates’ sentences were reduced which resulted in their immediate release from various Federal Penitentiaries in the U.S. However, a new issue that has arisen from this ruling is whether the ruling would be “retroactive” in cases that were closed prior to the Johnson ruling.  Retroactivity in this context means that the ruling would apply to all cases regardless of the case being closed or still pending.

The case of Welch v. United States which is set to be argued to the U.S. Supreme Court in March 2016 addresses the issue of retroactivity of the Johnson case. There were multiple cases that appealed to the U.S. Supreme Court on this particular issue.  But the Supreme Court chose to hear Welch’s case in oral arguments.  The reason that the Supreme Court picked this case other a dozen others was because a proper record was made.

Specifically, Welch’s case was chosen over the other cases because his case was not complicated by rules barring multiple habeas corpus petitions and was taken to the appellate court level by his attorneys which resulted in a ruling. Further, his attorneys filed a new brief characterizing Welch’s case in the position that the rule in Johnson was substantive and should applied retroactively to closed cases.  Other cases that were under consideration were riddled with the aforementioned procedural issues and complications which resulted in the Supreme Court choosing Welch’s case.

Situations like Johnson and Welch illustrate that it is important to make a proper record both procedurally and substantively regardless of the current status of the law. Because the law is always changing (evolving) and making the proper record can ultimately benefit an individual in the future.

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10.0Raymond G. Wigell
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