Aug. 19, 2015 – Electronic audio and video recordings have become ubiquitous in civil and criminal litigation. As a result, Wisconsin’s appellate courts often must view or listen to such recordings – usually contained on compact disc in the original record – to decide issues on appeal.
Jake Wittwer (U.W. 2004) is an assistant attorney general in the Criminal Appeals Unit of the Wisconsin Department of Justice, where he has worked since 2011 following clerkships with the Wisconsin Supreme Court and Wisconsin Court of Appeals. Wittwer is chairperson of the State Bar’s Appellate Practice Section.
Sometimes the record contains a transcript of the recorded event – or the parties can produce a transcript of the recorded event and the court can resolve the appellate issue simply by reviewing that transcript. But, in other cases, the recording provides additional information relevant to the issue on appeal that cannot be captured by transcription, such as the demeanor and tone of the speakers. In still other cases, the recording consists only of images – a dash-cam video recording of a traffic stop, for instance – and must be viewed by the court to decide the issue.
Despite the prevalence of electronic video and audio recordings in cases before Wisconsin’s appellate courts, the current rules of appellate procedure do not explicitly address how or even whether parties may include copies of such recordings in the appendices of their appellate briefs filed in the Wisconsin Court of Appeals and Wisconsin Supreme Court.
Include Records Essential to the Issues Raised
Wisconsin Stat. Rules 809.19(2)(a) and (b) suggest that if the electronic recording is “essential” to an appellate issue, the appellant must include a copy of the recording in his or her appendix – or, at least in theory, face the possibility of court sanctions for omitting an “essential” document.
Under Wis. Stat. Rule 809.19(2)(a), an appellant’s brief “shall include a short appendix containing, at a minimum ... limited portions of the record essential to an understanding of the issues raised.” Rule 809.19(2)(b) requires appellant’s counsel to file a certification declaring that the appendix “contains, at a minimum ... portions of the record essential to an understanding of the issues raised.”
On occasion, the Wisconsin Court of Appeals has fined counsel for filing a false certification under Rule 809.19(2)(b) when the appellant’s appendix does not, in fact, include required portions of the record.1
Respondents may file a supplemental appendix under Rule 809.19(3)(b) but are not required to do so. But if counsel for the respondent believes a record document not provided by the appellant is essential to decide an issue on appeal, he or she should include it in a supplemental appendix – if only for the convenience of the court.
Inclusion Favored, but Little Guidance
The purpose of Wis. Stat. Rule 809.19(2) – to assist the court by putting at the judges’ fingertips the parts of the record needed to decide the issues in the case – also strongly favors inclusion of electronic recordings. Busy appellate judges do not appreciate having to dig through the record to find a necessary document that could have been provided in the appendix: “The volume of work to be done by this court does not leave time for the justices to search the original record for each one to discover, if he [or she] can, whether appellant should prevail.”2
However, Wis. Stat. Rule 809.19(8)(b), which addresses the form of the brief appendix, provides no guidance for submitting copies of electronic video or audio recordings in an appendix. In fact, the rule appears to contemplate a paper-only appendix. Among the specifications to which a brief and appendix must conform under Rule 809.19(8)(b) is that they be “produced on 8 ½ x 11 inch paper.”
The Paper-only Appendix
That potentially leaves parties on appeal in a quandary: Under the current rules, appellants must include portions of the record essential to an understanding of the appellate issues in a paper appendix. But how may the parties comply with that requirement when essential portions of the record cannot be produced on paper?
At present, the Clerk’s Office interprets Wis. Stat. Rule 809.19 to permit the filing of a paper-only appendix. In response to an email query from the author, Clerk Diane Fremgen explained that it is the appellate courts’ preference that parties include transcripts of recordings in an appendix. She encouraged prospective appellants to obtain a transcript of any recording before the record is filed with the court of appeals if no transcript was previously prepared in the litigation.
For now, the clerk’s office recommends if parties wish to include in an appendix a CD or other electronic media copy of an electronic recording, they should file a motion with the court requesting permission to do so. Fremgen stated that such a motion should explain the nature of the electronic file and the necessity of including it in the appendix.
Having briefed cases in which an electronic recording was central to an issue on appeal, my view is that the rules of appellate procedure should authorize parties to include copies of electronic recordings in appendices when those recordings are stored on compact disc or another format easily affixed to a sheet of paper. An amendment authorizing the inclusion of electronic recordings in an appendix would ensure appellants’ compliance with Wis. Stat. Rules 809.19(2) (a) and (b) when an electronic recording is “essential” to an issue on appeal, and, importantly, ensure that Wisconsin appellate judges are provided convenient access to all portions of the record needed to decide the case.
Transition to Electronic Records
On June 23, 2015, the Clerk’s Office of the Wisconsin Supreme Court and Court of Appeals submitted a rules petition in the Supreme Court signaling that Wisconsin’s appellate courts may soon begin the transition from paper to electronic records. The petition seeking for enactment of Rule 15-2 seeks to authorize circuit courts to transmit the record to the court of appeals electronically.
If enacted, this change would allow judges and courts staff (as well as counsel of record and pro se litigants) online access to most parts of the record. But it appears that compact discs and other portable storage formats containing electronic recordings would still be transmitted to the court of appeals via U.S. Mail.
Thus, if the supreme court adopts the above petition in its current form, a rule change allowing a copy of the disc to be included in an appendix when necessary would still be warranted to make the recording as accessible to judges and court staff as the rest of the record soon may be.
The views expressed herein are those of the author, and are not necessarily those of the Appellate Practice Section Board, the Wisconsin Department of Justice, or Attorney General Brad Schimel.
This article was first published in the August 2015 issue of DeNovo, the newsletter of the State Bar of Wisconsin Appellate Practice Section. To join the section or for more information, visit their page on WisBar.org.
1 See State v. Bons, 2007 WI App 124, ¶¶ 22-25, 301 Wis. 2d 227, 731 N.W.2d 367.
2 See State v. Bons, 2007 WI App 124, ¶¶ 22-25, 301 Wis. 2d 227, 731 N.W.2d 367.