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Reconstruction of Missing Evidence

State v. Jerry L. Parker,  2002 WI App 159, PFR filed 5/20/02
For Parker: William Christopher Rose

Issue: Whether the principle of State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987) (missing transcript that can’t be re-created requires new trial) applies to posttrial destruction of potentially exculpatory evidence (taped drug transaction) given to the defense before trial but never introduced into the record.

¶11. Parker’s reliance on Perry is misplaced. Perry‘s concern is the protection of a defendant’s right to a meaningful appeal by assuring a defendant’s access to a full and complete transcript of the trial. Id. Here, however, we address the destruction of an audiotape that was provided to the defendant prior to but never utilized at trial. The import of such a tape and the import of a trial transcript cannot be equated.
¶12. Providing a defendant a full transcript guarantees that the defendant has the opportunity to analyze the proceedings of the trial court and to challenge any errors. State v. Raflik, 2001 WI 129, ¶31, 248 Wis. 2d 593, 636 N.W.2d 690. But again, the tape here was never made a part of the trial court record by Parker or the State. In deciding whether an error warrants a new trial, we are limited to the record of the proceedings in the trial court and the appellate record cannot be enlarged by materials which were not made part of the record in the trial court.Verex Assurance, Inc. v. AABREC, Inc., 148 Wis. 2d 730, 734 n.1, 436 N.W.2d 876 (Ct. App. 1989).  Perry has never been extended to cover the destruction of or absence of items not a part of the trial court proceedings.

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