At trial, after a mistrial, an in pro per defendant asked the trial court judge to order that a full and complete reporter’s transcript of the first trial be prepared. The trial court ordered the reporter to prepare all trial testimony but did not include jury voir dire, opening statement or closing arguments in the transcripts. The defendant again asked for transcripts of opening and closing arguments, stating that he needed these transcripts “so [he] [would not] make the same mistakes.” The court denied the request, stating: “When you represent yourself, the court cannot give you any favors. You will be treated like a lawyer will be. That’s why people shouldn’t represent themselves. The motion to request the opening statement and closing arguments is denied. That was denied previously. That is not evidence.”
In People v. Hosner (1975) 15 Cal.3d 60 (Hosner), the Supreme Court answered “what showing of particularized need, if any, must an indigent defendant make in order to become entitled to a free transcript of prior proceedings.” (Hosner, supra, 15 Cal.3d at p. 66.) It held “an indigent defendant in a criminal trial is presumed to have a particularized need for a transcript of prior proceedings, just as he is presumed, if he needs a transcript at all, to need nothing less than a complete transcript.” (Ibid.) The court must grant the defendant’s motion unless the prosecution rebuts the presumption of defendant’s “need for the transcript and of the unavailability of adequate alternative devices.” (Ibid.) To the extent there is a dispute about whether a full
transcript is necessary, the prosecution also has the burden of showing that the defendant
would have an effective defense with anything less than a complete transcript. (Id. at
p. 64.) Under Hosner, error in failing to provide a complete transcript requires automatic
reversal. (Hosner, supra, 15 Cal.3d at p. 70.)
A majority of the panel explains, “we do not believe the Hosner per se rule of reversal was intended to apply in this case, where defendant received a transcript of all the testimony, and explained his request for the opening statements and closing arguments only by saying he needed them “to not make the same mistakes.” Defendant was not required to specify how the
transcript of testimony might aid his defense, because Hosner and the four decades of
high court precedent establish without question his equal protection right to a transcript
of the testimony. But the defendant who requests other parts of the transcript without
specifying why it is necessary to an effective defense may not invoke the Hosner rule of
automatic reversal.
Justice Flier in a dissenting opinion explains, “denying appellant a transcript of opening
statements and closing arguments from the mistrial was error under People v. Hosner
(1975) 15 Cal.3d 60, 62 (Hosner), and Hosner requires automatic reversal. “Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. [O]ur own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’” (Griffin v. Illinois (1956) 351 U.S. 12, 16-17, fn. omitted.) “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” (Id. at p. 19.) Thus, the state should provide indigent prisoners with the basic tools of an adequate defense when those same tools are available for a price to other prisoners. (Britt v. North Carolina (1971) 404 U.S. 226, 227 (Britt).)
It is this bedrock right to equal protection of the law that underlies our Supreme
Court’s decision in Hosner. Hosner held that, as a matter of equal protection, an indigent
defendant is presumptively entitled to a free “complete transcript” of a mistrial in
preparing for retrial (Hosner, supra, 15 Cal.3d at pp. 62, 66; Shuford v. Superior Court
(1974) 11 Cal.3d 903, 906 (Shuford).) Hosner soundly rejected the notion that a
defendant should have to show a particularized need for the complete transcript of a
mistrial: “[A]n indigent defendant in a criminal trial is presumed to have a particularized
need for a transcript of prior proceedings, just as he is presumed, if he needs a transcript
at all, to need nothing less than a complete transcript.” (Hosner, supra, 15 Cal.3d at 2
p. 66.) The prosecution bears the burden of showing the defendant would have an
effective defense with something less than a complete transcript. (Id. at p. 64.)
The reason why I believe that the dissent is better reasoned than the majority opinion is that in pro per defendants are presumed to not be articulate advocates for themselves and the burden the majority is placing on an indigent defendant to fully articulate a need for non-evidentiary transcripts when an in pro per defendant likely does not yet fully understand how these will be of value in preparing for trial, and thus, cannot fully articulate why they are needed is unfair.
copyright © 2015 Christine Esser
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