Getting a new trial on this issue for appeal...?

Question

"The trial court erred by allowing the trial to be conducted without adequately preserving the record of the trial and proceedings on the record as required by rule 22 of the ohio rules of criminal procedure thereby denying appellant his due process rights to appellate review..."

In short, the trial was recorded by a taping device only, and in the transcript there are over 430 instances where the record is unclear. It's not missing like one word here or there either. I'm talking entire conversations, and the testimony of witnesses and counsel arguements, side bar communications, and a numerous portions during voir dire. These instances that are missing are replaced by "partially inaudible", "no response heard", "unintelligable", ect.. Our attorney obviously argues this to it's entirety in every aspect of how unacceptble and unfair this is.

I was just wondering what are our chances for a new trial based on this issue alone? Has anyone had or heard any issues regarding this before?

Answer 1

It sounds like that's an excerpt from your lawyer's appellate brief. The question will likely turn on whether the failure made a difference in the possible outcome of the trial. If there's sufficient evidence of guilt in the portion of the transcript that is available, and if there is no suggestion that in the unpreserved record there was sufficient evidence of innocence, it's unlikely that the verdict will be overturned on the technicality.

Answer 2

If the appellate court ruled that the trial court erred, then part of the ruling would include that the appellate court thinks is the proper remedy. This would most likely be remand for a new trial.

If what you quoted was just the argument on appeal, then it entirely depends on how annoyed the appellate court gets over the state of the transcript. And that's impossible to predict from the facts given.