When a key portion of a court-martial is missing a verbatim transcript, it creates a significant issue for appellate review, and it can potentially lead to the conviction being overturned. A service member has a right to a complete and accurate record of their trial for their automatic appeal. If a portion of the transcript is missing due to a technical failure of the recording equipment or a court reporter’s error, the record is incomplete.
The first step is for the appellate courts to determine if the record can be reconstructed. The trial judge may hold a post-trial session to try and recreate the missing portion of the record with the help of the trial counsel, defense counsel, and their own notes. If the missing portion is short and procedural, a reconstruction may be sufficient. However, if a key witness’s testimony is missing, a reconstruction is often deemed inadequate because it cannot capture the nuances of the live testimony.
If the record cannot be reconstructed, the appellate defense attorney will argue that their client has been denied their right to a full and fair appellate review. The argument is that without a complete transcript, the appellate judges cannot properly assess whether legal errors occurred during that portion of the trial. If the missing portion is substantial and material, the appellate court may find that the record is not “complete” as required by the UCMJ. The remedy in such a case is often to set aside the findings and sentence and authorize a rehearing, or a new trial.