IN RE: REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS
ORDER ADOPTING REVISION IN AND REPUBLISHING PORTION
OF THE RULES OF THE COURT OF CRIMINAL APPEALS
¶1 We find that revision of the Rules for the Oklahoma Court of Criminal Appeals is necessary to ensure that exhibits depicting or containing child pornography are properly handled and secured throughout the State and that such exhibits are lawfully made available for review on direct appeal. Pursuant to the provisions of Section 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate and republish portions of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp. 2013, Ch. 18, App. (2014), set forth as follows and as set out in the attachment to this order:
RULE 2.2(G). When the Record Includes Child Pornography
FORM 13.16 Order To Transport Sealed Exhibits On Appeal
¶2 These revisions shall become effective on the date of this order.
¶3 IT IS SO ORDERED.
¶4 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 19th day of June, 2014.
/S/DAVID B. LEWIS, Presiding Judge
/S/CLANCY SMITH, Vice Presiding Judge
/S/GARY L. LUMPKIN, Judge
/S/CHARLES A. JOHNSON, Judge
/S/ARLENE JOHNSON, Judge
ATTEST:
/s/Michael S. Richie
Clerk
IN THE DISTRICT COURT OF ________________ COUNTY
THE STATE OF OKLAHOMA
|
THE STATE OF OKLAHOMA, Plaintiff,
vs.
____________________________________, |
) ) ) ) ) ) ) ) |
Appeal Case No. _______________________ |
ORDER TO TRANSPORT SEALED EXHIBITS ON APPEAL
The attached exhibit(s) numbering __________________________ were introduced at trial in the above styled case. At that time, this Court ordered the exhibit(s) placed in a sealed manila envelope and clearly marked with the caption and case number; the date the order was entered; the name of the judge who entered the order; and the word "SEALED". As the exhibit(s) are part of the record on appeal in this case and the Oklahoma Court of Criminal Appeals has issued its Notice to Transmit, I hereby order the Clerk of the District Court of __________________________ County, to deliver the exhibit(s) to the following individual: ___________________________________ in his or her official capacity as _______________________ for _____________________________________ to transport to the Court of Criminal Appeals. I further order ___________________________________ in his or her official capacity as ______________________________ for _____________________________________ to transport the exhibit(s), along with two (2) copies of the Order to Transport to the Clerk of the Court of Criminal Appeals, 2100 N. Lincoln, Suite 4, Oklahoma City, Oklahoma 73105 and hand-deliver the exhibits to the Clerk of Court of Criminal Appeals or his deputy clerk within ten (10) days of the date of this order.
IT IS SO ORDERED.
This order signed this __________ day of __________, 20__________.
__________________________________
Judge of the District Court
__________________________________
(Signature plus typed name and title)
CLERK'S CERTIFICATION OF EXHIBITS
I, ________________________, Clerk of the District Court of _________________ County, State of Oklahoma, do hereby certify that the exhibits attached to this Order to Transport Sealed Exhibits On Appeal are the true and correct exhibits filed under seal in the above entitled cause, as designated. In testimony whereof, I have hereunto set my hand and the seal of this Court this ________ day of ____________, 20_______.
(SEAL)
By:
_________________________
Court Clerk
RECEIPT TO TRANSPORT
I, ___________________________ in my official capacity as _________________________________ for _____________________________________, acknowledge receipt of the Order to Transport Sealed Exhibits On Appeal in the above styled case and the attached sealed exhibits. I understand that I must hand-deliver the exhibits and two (2) copies of the Order to Transport to Clerk of the Court of Criminal Appeals, 2100 N. Lincoln, Suite 4, Oklahoma City, Oklahoma 73105, within the time limits prescribed by the Oklahoma Court of Criminal Appeals.
Dated: _________ day of ________, 20______.
_______________________________________
______________________________________
(Signature plus typed name and title)
APPELLATE COURT CLERK'S ACKNOWLEDGMENT OF RECEIPT
I acknowledge receipt of the Order to Transport Sealed Exhibits On Appeal in the above styled District Court Case and the attached sealed exhibits as part of the record on appeal this _______ day of ________, 20______,
(SEAL)
By:
_________________________
Appellate Court Clerk
Rule 2.2 Form and Contents of Record
A. Duties of Clerk to Assemble Record. After a designation of the record is made, the trial court clerk shall promptly assemble, in chronological sequence, all of the instruments on file, together with transcripts as required by subpart B of this Rule, which have been designated for inclusion in the record on appeal. The instruments, numbered consecutively, indexed and bound in volumes which shall not exceed two hundred (200) pages each, shall be certified under the seal of the clerk of the trial court. All designations of record and a certified copy of all the appearance docket sheets, as well as the Judgment and Sentence AND/OR final order, shall be included. In accordance with Rule 3.2, three (3) certified copies shall be prepared for transmission to this Court and appellant's attorney. The Court recognizes the provisions of Section 1054 of Title 22, but directs the clerk of the trial court to retain the original record in the trial court. See Rule 4.3 for duties in certiorari appeals. (Emphasis added by the Court)
B. Duties of Court Reporter to Assemble Exhibits.
(1) The court reporter shall ensure trial exhibits are indexed and incorporated into the transcript by physical attachment. In the event the exhibit cannot be physically attached, the court reporter shall attach a clear and viewable photograph or photocopy accurately depicting the exhibit to both the original transcript (or separate volume if necessary) and copies as required below. All copies of exhibits, including photographs, provided pursuant to this Rule shall be in color unless the original exhibit was in black and white. Black and white photo copies of color exhibits are not acceptable. If the exhibit is an audio or video tape or other electronically reproduced medium, the reporter shall be responsible for ensuring that the original and two (2) copies of the item are filed with the transcripts. In each instance, as a condition to the admissibility of the exhibit for consideration on appeal, the trial court shall ensure the party introducing the exhibit shall be responsible for both its reproduction in the same quality as the original, including delivery to the court reporter, and the cost of reproduction. If a party fails to comply with a reporter's request to provide copies of exhibits in accordance with this Rule, the court reporter, after completion of the transcripts, shall file a notice of non-completion with the clerk of the District Court and the Clerk of this Court setting out with specificity the items that have not been provided, when the request was made and the party who has failed to comply with this Rule.
(2) The original transcript, indexed and certified as correct, together with two (2) certified copies (original and three (3) certified copies in capital cases), and attached exhibits or photos or copies of exhibits, in volumes not to exceed three hundred (300) pages of text per volume, shall be filed with the court clerk in the trial court by the court reporter within sufficient time to allow the trial court clerk to file the notice required by Rule 2.3(A) within ninety (90) days of Judgment and Sentence in misdemeanor and regular felony appeals, and within six (6) months in capital appeals.
(3) Upon the filing of the transcript, the court reporter is required to notify in writing the defendant's appellate attorney, the district attorney, the attorney general, the trial court clerk and the Clerk of this Court that the transcripts have been filed with the trial court clerk. This notice shall be specific, itemizing and describing with particularity all transcripts (by volume number or date of hearing) and exhibits (by number/letter and description) filed with the court clerk. If more than one court reporter was involved in the proceedings at issue, each court reporter shall be responsible for filing a separate specific, itemized list. The clerk of the trial court shall file the notice with the record.
(4) No exhibits other than documentary, photographic or electronically recorded evidence, as required by subpart (B)(1) of this Rule, shall be incorporated into the record on appeal or transmitted to the Clerk of the Court of Criminal Appeals; PROVIDED HOWEVER, this Court may direct supplementation of the record for any exhibit necessary for the determination of the appeal. Under no circumstances will controlled or dangerous substances, weapons, or ammunition, or body fluids or tissues be included in the record.
C. Transcript Not Available. If no transcript has been previously prepared and no tape recording is available for any portion of the trial proceedings, the trial attorneys may stipulate or submit affidavits as to what transpired during the proceeding not transcribed or recorded. The trial judge shall enter an order adjudicating any matters upon which the attorneys cannot agree regarding what transpired during the unrecorded or untranscribed proceedings.
D. Transcript Available. The transcript prepared by the court reporter shall constitute the record of the proceedings from which it was transcribed. When such transcript is made, tape recordings made by the court reporter as a supplementary backup to the stenographic record to the completed transcript of proceedings shall not constitute a part of the official record unless such proceedings were recorded in accordance with Section 1223.1 of Title 22. See Sections 106.4(a), 106.4a, and 106.5 of Title 20. This Rule does not preclude findings of extreme necessity by the trial court that such recordings, if they exist, are necessary to supplement inadequate transcripts.
E. Form of Certification for Original Record in Trial Court. The original record to be filed in this Court must be certified by the clerk of the trial court utilizing the form set out in Section XIII, Form 13.9.
F. When a City or Municipality is a Party. When a city or municipality is a party, a certified copy of the specific ordinance(s) involved in the case shall be included in the record. It shall be the responsibility of the city or municipality to ensure the ordinance(s) are included in the record for appellate review. See Hishaw v. City of Oklahoma City, 1991 OK CR 122, 822 P.2d 1139.
G. When the Record Includes Child Pornography. When the record includes exhibits which depict or contain child pornography (See Section 1024.1 of Title 21), the trial court shall take precautionary steps in the handling of such exhibits. An exhibit depicting or containing child pornography may only be possessed by the court, the court clerk, the district attorney, an assistant district attorney, and law enforcement.
(1) An exhibit depicting or containing child pornography shall not be copied, duplicated, or reproduced in any manner. The condition to admissibility requiring the party introducing an exhibit to be responsible for delivering copies to the court reporter in Subsection B, above, shall not apply to an exhibit depicting or containing child pornography.
(2) The trial court shall enter an order sealing any exhibit introduced at trial which depicts or contains child pornography in accordance with Section 24A.29(A)(3) of Title 51. The trial court clerk shall take possession of the sealed exhibit and secure it in a locked, secured repository with access only as directed by the trial court and this Court.
(3) An exhibit depicting or containing child pornography shall not be transmitted with the record. Upon receipt of the Notice to Transmit, the District Court shall enter an Order to Transport directing the district attorney, assistant district attorney or law enforcement to transport the exhibit under seal with two (2) copies of the Order to Transport and hand-deliver both the sealed exhibit and the copies of the Order to Transport to the Clerk of this Court. Any exhibit depicting or containing child pornography shall be transported to the Clerk of this Court within ten (10) days of receipt of the Notice to Transmit. The trial court clerk shall certify the exhibit on the copies of the Order to Transport utilizing the form set out in Section XIII, Form 13.16.
(4) Upon receipt of the sealed exhibit and copies of the District Court's Order to Transport, the individual transporting such an exhibit shall execute and file a Receipt to Transport and acknowledge receipt of the sealed exhibit with the trial court clerk. The individual shall maintain proper chain-of-custody of the exhibit until hand-delivered to the Clerk of this Court with two (2) copies of the Order to Transport. The individual shall return one copy of the District Court's Order to Transport with the Clerk of this Court's acknowledgment of receipt to the trial court clerk.
(5) Upon receipt of a sealed exhibit depicting or containing child pornography, the Clerk of this Court shall acknowledge receipt of the exhibit on one (1) copy of the District Court's Order to Transport and file one (1) copy of the Order to Transport. The clerk of this Court shall enter the exhibit on the case docket and secure the exhibit in a locked, secured repository with access only as directed by this Court. Counsel for Appellant and for the State may contact the Marshal of this Court for viewing of any exhibit depicting or containing child pornography. When an exhibit depicting or containing child pornography is no longer needed for judicial review, this Court will order destruction of the exhibit.