Ky. Sup. Ct. Order 2022-49 art. V

RAP 24 Contents and Designation of Record on Appeal

(A) Composition of the Record on Appeal. The following items

constitute the record on appeal:

(1) Written Record. The entire original written record on file in

the office of the clerk of the trial court, including juror strike sheets made

pursuant to RCr 9.36, designations or stipulations of the parties with

respect to the record, and a copy of the certification of record on appeal,

including a copy of the case history and docket shall be included.

(2) Exhibits and Physical Evidence. Exhibits, such as

documents, maps and photographs, and other papers or electronic

records that are reasonably capable of being enclosed in legal-sized

envelopes, shall be included in the record on appeal. Weapons,

contraband, and other physical evidence shall not be transmitted to the

appellate court unless specifically directed by the appellate court upon a

timely motion of a party or upon its own motion.

(3) Official Recordings. The official electronic recording of

court proceedings is the official record for appeal. Official recordings of

the trial that results in the order or judgment being appealed from shall

be certified as a part of the record on appeal. In addition, official

recordings of other proceedings that have been designated by the parties

or agreed upon by stipulation shall be certified as a part of the record on

appeal.

(4) Transcripts of Court Proceedings are Not the Official

Record. Parties to an appeal may attach an evidentiary appendix,

consisting of a limited number of pages of a transcript of an official

proceeding, as an evidentiary appendix to their brief as set forth in RAP

32(E)(2). A transcript included in an evidentiary appendix does not take

the place of an official video record.

(B) Designation of Record on Appeal

(1) Appellant’s Duty.

(a) Contents of Record Designation. Appellant or

counsel for appellant, if any, shall provide the clerk of the trial

court with a designation listing with specificity the dates on which

official recordings were made for all pre-trial and post-trial

proceedings necessary for inclusion in the record on appeal. While

trial recordings are part of the record on appeal regardless of

designation, to facilitate the timely preparation and certification of

the record, the parties should list the date(s) of any trial

proceedings.

(b) Timing of Record Designation. If RAP 22

(prehearing procedure) is applicable, the designation shall be filed

with the clerk of the trial court no later than 10 days from the

order ending the prehearing procedure under RAP 22(B)(2). In all

other appeals, the designation shall be filed with the clerk of the

trial court no later than 10 days from the filing of the notice of

appeal.

(2) Other Party’s Duty. No later than 10 days from the service

and filing of appellant’s designation, or no later than 10 days from the

time for filing of such designation has expired, any other party to the

appeal may file a designation of additional dates of pre-trial or post-trial

recordings as that party wishes to be included.

(3) Recordings Designated but not Sent. If pre-trial or post-trial recordings that were timely designated for inclusion in the record on

appeal are omitted from the record on appeal, the party may notify the

circuit clerk pursuant to RAP 25(C).

(4) Recordings not Timely Designated for Inclusion. Pre-trial

or post-trial recordings that are not timely designated for inclusion will

not be included in the record on appeal other than as set forth in RAP

25(D).

RAP 25 Unavailable or Omitted Proceedings

(A) Narrative statement.

(1) In the event no official record of the evidence or proceedings

at a hearing or trial was made or, if made, is not clearly understandable

from the recording, the appellant may prepare a narrative statement of

the evidence or proceedings from the best available means, including

appellant’s recollection, for use as a supplement to or in lieu of an

insufficient official record. This statement shall be served on all

opposing counsel who participated below who may serve objections or

proposed amendments to the trial court within 10 days after service.

Both parties may attach affidavits or other documents to support their

statements, objections, or proposed amendment.

(2) The proposed narrative statements, with the objections or

proposed amendments, shall be submitted to the trial court for

settlement and approval and, as settled and approved, shall be included

in the record on appeal.

(3) The adequacy of the narrative statement to allow for a full

and fair review may be raised in the appellate court.

(4) By agreement of the parties and approval by the trial court, a

narrative statement of all or any part of the evidence or other proceedings

at a hearing or trial may be substituted for or used in lieu of an official

recording.

(5) Any statement approved by the trial court, or any order

refusing to approve a narrative statement, shall be included in the record

on appeal. Once a narrative statement has been approved, or an order

entered refusing to do so, it shall be certified as part of the original

record on appeal or as a supplemental record on appeal and immediately

transmitted by the clerk of the trial court to the clerk of the appellate

court.

(B) Effect of Omitted Record. The appellate court shall not consider

any claim or contention which is based upon a portion of the record

below that has not been made part of the record before the appellate

court. The record may, however, be corrected or modified as set forth in

the following sections (C), (D), and (E)

(C) Circuit Clerk May Correct Record. If material properly

designated by a party is omitted from the record by error or accident, the

party may notify the circuit clerk who shall file a supplemental

certification and transmit that omitted portion of the record to the

appellate court without further order of that court.

(D) Power of the Court to Correct or Modify the Record.

(1) If any difference arises as to whether the record truly

discloses what occurred in the trial court, the difference shall be

submitted to and settled by the trial court.

(2) If anything material to either party is omitted from the record

on appeal by error or accident or is misstated therein, the parties by

agreement, or the trial court, either before or after the record is

transmitted to the appellate court, or the appellate court, on a proper

suggestion or of its own initiative, may direct that the omission or

misstatement shall be corrected, and if necessary that a supplemental

record shall be certified and transmitted by the clerk of the trial court.

(3) All other questions as to the content and form of the record

shall be presented to the appellate court.

(E) Deadlines Run from Original Certification. All appellate

deadlines determined by the date of certification of the record on appeal

run from the original notice of certification under RAP 26(B)(5), not any

supplemental certification, correction, or modification of the record

under this rule, unless otherwise ordered by the appellate court, except

in criminal cases in which RAP 30(D)(2) applies.

RAP 26 Duties of Circuit Court Clerk Regarding Preparing,

Certifying, and Forwarding the Record and Review or

Withdrawal of Appellate Record

(A) Duties of Clerk Upon Filing of Notice of Appeal

(1) Transmittal of Documents. Upon the filing of a notice of

appeal to the Court of Appeals or to the Supreme Court, the clerk of the

circuit court shall forthwith transmit a copy of the notice of appeal to the

appellate clerk and counsel for the parties to the case in the circuit court

(or to the parties if they are pro se), together with copies of (a) the docket

sheet of the court from which the appeal is taken; (b) the judgment or

order sought to be reviewed; (c) any opinion or findings of the circuit

court or administrative agency; and (d) the receipt for the notice of appeal

filing fee or an order granting a motion to proceed in forma pauperis.

(2) Additional Duties in Criminal Appeal. In addition, if the

case is a criminal case the above documents shall also be provided to the

Attorney General’s Office. If the notice of appeal in a criminal case is

filed by a public advocate, the above documents shall also be provided to

the Department of Public Advocacy. If the notice of appeal was mailed by

an inmate, the clerk shall provide a copy of the envelope to the appellate

clerk with the notice of appeal.

(3) Record of Trial Court Video.

(a) Upon the filing of a notice of appeal, a certified copy of

video recordings required by CR 98(2), or a court-certified copy of

that portion recording the court proceeding being appealed, shall

be filed with the clerk and certified by the clerk as part of the

record on appeal. A second copy of the video recording, or a court-certified copy of that portion recording the court proceeding being

appealed, also shall be retained by the clerk.

(b) The clerk shall arrange for the recording of duplicate

copies of video recordings for use by counsel in preparing an

appeal. The clerk shall charge the person requesting a duplicate

video recording a reasonable fee, which shall be set by the

Administrative Office of the Courts, for each duplicate video tape,

disk or other media requested.

(B) Duties of Clerk Regarding Preparing and Certifying Record.

(1) Written Record. The circuit court clerk shall prepare and

certify the entire original written record on file in the clerk’s office. All

parts of the written record on appeal shall be arranged in the order in

which they were filed or entered, including juror strike sheets made

pursuant to RCr 9.36. If the record comprises more than 150 pages, it

shall be divided into two or more volumes not exceeding 150 pages each.

Each volume shall be securely bound. Logs of any official recordings

designated must be included in the record. In addition, there shall be a

general index at the beginning of the record and an index to each volume

in the front thereof which shall show, in the order in which they appear,

the pages on which all pleadings, orders, judgments, instructions, and

papers may be found.

(2) Official Recordings. The clerk shall prepare and certify

official recordings of the trial resulting in the order or judgment being

appealed and shall further certify other official recordings that have been

designated by a party. The clerk may certify a recording of the entire

docket of proceedings on a designated date if a log of that docket is

included in the record.

(3) Exhibits and Physical Evidence. All exhibits such as

documents, maps, photographs, and other papers reasonably capable of

being enclosed in legal-sized envelopes, shall be transmitted to the

appellate court. Weapons, contraband, and other physical evidence shall

not be transmitted to the appellate court unless specifically directed by

the appellate court upon a timely motion of a party or upon its own

motion. All exhibits filed with the record shall be sufficiently identified.

(4) Time for Certification.

(a) If RAP 22 does not apply to the appeal, the record on

appeal shall be certified by the clerk within 30 days after the date

of filing the first notice of appeal.

(b) If RAP 22 applies to the appeal, the clerk shall prepare

and certify the record within 30 days of the order ending the

prehearing procedure under RAP 22(B)(2).

(c) In in forma pauperis cases, the time for certifying the

record on appeal shall run from the date a motion to proceed in

forma pauperis is granted.

(d) The appellate court, in its discretion, may extend the

time for certification of the record upon motion and a showing of

good cause.

(5) Notice of Certification. The clerk of the court from which

the appeal is taken shall immediately notify the clerk of the appellate

court when the record has been completed and certified as required by

this rule, and shall simultaneously serve copies of such notification and

the index of the record on appeal upon all parties to the appeal. The

clerk shall enter the fact and date of such notification in the case history

of the case.

(C) Several appeals. When more than one appeal is taken to an

appellate court from the same judgment, a single record on appeal shall

be prepared containing all the matter designated or agreed upon by the

parties, without duplication. If there are separate appeals to the

Supreme Court and the Court of Appeals in a criminal case, a copy of the

original record shall be made up and certified as the record on appeal in

the Court of Appeals.

(D) Transmitting and Retaining the Record.

(1) Retention of Record Until Requested. Until the record on

appeal is requested by the clerk of the appellate court, the record on

appeal shall be retained under the responsibility and control of the clerk

of the circuit court.

(2) Withdrawal of Record.

(a) Counsel for the parties may withdraw the record on

appeal from the trial court or the circuit court clerk.

(b) The record on appeal shall not be withdrawn by pro se

parties, but it may be viewed in the trial court or circuit clerk’s

office during regular business hours.

(c) The record on appeal will be made available first to

counsel for the appellant and then to the counsel for the appellee

and then to counsel for appellant. If the record on appeal is

removed from the clerk’s office, counsel for the party withdrawing

the record shall return it before submitting the party’s brief to the

appellate court. A record on appeal shall not be retained by

counsel beyond the filing date on which the brief for the party

represented by that counsel is due.

(d) The original evidentiary exhibits and the official

electronic records shall be retained in the clerk’s office until the

record is transmitted to the appellate court, and they may not be

withdrawn by any party or by counsel for any party.

(e) Withdrawals and returns of the record on appeal shall

be noted by the clerk.

(3) Transmission of Record. The circuit court clerk shall

transmit the record on appeal to the appellate court when so requested

by the clerk of the appellate court. When transmitting the record on

appeal, the clerk shall send one certified copy of the recorded

proceedings prepared pursuant to RAP 24.

(E) Duties of Clerk on Appeal of Order Granting or Denying a Writ

of Habeas Corpus. As set forth in RAP 52(B), a record on appeal

consisting of all documents on file with the circuit court and all video

record of any hearings held, unless the party appealing specifies

otherwise, shall be transmitted to the Court of Appeals as soon as

possible, but no later than 10 days from the filing of a notice of appeal

from an order granting or denying a writ of habeas corpus.

(F) Duties of Clerk on Appeal of In Forma Pauperis. As set forth in

RAP 55(D), the appeal of certain orders relating to motions to proceed in

forma pauperis are expedited proceedings. In such appeals, a certified

copy of the abbreviated record shall be bound and page numbered

according to the normal procedure for a record on appeal. The original

record shall be retained by the lower court clerk. The certified copy of

the abbreviated record shall be transmitted to the appellate court clerk

as soon as possible, but no later than 10 days from the notice of appeal.

RAP 27 Appellate Clerk’s Duties

(A) Scope of Rule. RAP 27 applies only to the clerks of the Court of

Appeals and Supreme Court.

(B) General Docket. The clerk of each appellate court shall keep a

general docket in which shall be recorded all appeals and original

proceedings in that court. It shall show the number and style of each

case and the dates it is docketed, submitted, or sent to the court, and

decided. In appealed cases it shall show also the county from which

appealed, whether it is civil or criminal, and if advanced; the dates briefs

are filed; the dates a petition for rehearing, modification or extension is

filed and ruled on and the nature of the ruling; and the date the order or

opinion became final.

(C) Docketing of Appeals. No action in or appeal to the Court of

Appeals or Supreme Court will be docketed until the filing fee required by

RAP 13 is paid, except as set forth in RAP 2(H). Subject to that

requirement, an appeal shall be docketed when the appellate court clerk

receives copies of the notice of appeal, official docket sheet, judgment,

and receipt for the filing fee or an order granting a motion to proceed in

forma pauperis from the appropriate court clerk. A motion for relief

under RAP 20(B), (C), or (F) shall also be treated as an appeal and shall

be docketed when it is filed and the filing fee is paid. A motion for relief

under RAP 20(D) shall be treated as an interlocutory motion in the

pending appeal from the final judgment and shall not receive a separate

docketing number in the Court of Appeals.

(D) Docket Sheets. The clerk shall attach to each case record a

docket sheet which shall bear the style and file number of the case, a

brief indication of the subject-matter, the names and addresses of the

attorneys, and in appealed cases the county and appellate district from

which appealed and the name and address of the trial judge. Every step

taken in the case shall be entered by the clerk on the docket sheet.

(E) Filing of Papers. Nothing lodged with the clerk in connection with

an original proceeding or an appealed case, or on which action of any

kind by the court is sought, shall be docketed or noted as a step in a

proceeding unless it is tendered within the time allowed for its filing and

otherwise conforms to these rules and any filing fee required by RAP 13

has been paid.

(F) Unauthorized or Nonconforming Paper. A late, unauthorized, or

otherwise nonconforming paper shall be considered only by leave of the

court.

(G) Request for Transmittal of Record on Appeal. Transmittal of

the record on appeal from the clerk of the trial court shall be requested

by the clerk of the appellate court when the appellant’s reply brief is filed

or at the expiration of the time allowed for its filing, whichever is sooner,

with the following exceptions in criminal cases (including proceedings

under RCr 11.42):

(1) If the notice of certification required by RAP 26(B)(5)

indicates that counsel for the appellant is the Public Advocate of the

Commonwealth or the Attorney General of the Commonwealth, the clerk

of the appellate court shall request transmittal of the record forthwith;

or

(2) If the notice of certification required by RAP 26(B)(5)

indicates that counsel for the appellant is someone other than the

Public Advocate of the Commonwealth or the Attorney General of the

Commonwealth or that the appellant is acting pro-se, the clerk of the

appellate court shall request transmittal of the record when the

appellant’s brief is filed. Should the appellant fail to file a brief, the

clerk need not request the record unless so directed by the court.

(H) Preservation and Disposition of Records.

(1) Withdrawal from Custody of Clerk. Records or parts

thereof shall be taken from the custody of the clerk of the appellate court

only under extraordinary circumstances and upon order of the court,

except that, unless otherwise directed by the Supreme Court, the Public

Advocate of the Commonwealth or the Attorney General of the

Commonwealth may be permitted by the clerk of an appellate court to

have temporary custody of records in criminal and quasi-criminal cases

for the purpose of preparing briefs.

(2) Transmittal from Court of Appeals to Supreme Court.

Upon the granting of a motion for discretionary review by the Supreme

Court, the clerk of the Court of Appeals shall forward the record on

appeal to the clerk of the Supreme Court, together with the briefs and all

other relevant papers on file in the Court of Appeals.

(3) Return to Trial Court. Upon final disposition of an appeal

the clerk shall return the original record to the clerk of the trial court.

All other records shall be retained or archived. Physical exhibits may be

disposed of at any time as the court directs unless otherwise directed by

statute.

RAP 28 Access to Record on Appeal

(A) General Rule. In all actions prosecuted under these rules, the

complete or partial record on appeal, or the record submitted with

original actions, is available for public inspection unless access is

prohibited by: (1) a federal statute or regulation or a Kentucky statute;

(2) this rule or another court rule; (3) a published opinion of the Supreme

Court of Kentucky or the Kentucky Court of Appeals; or (4) an order

entered by the court from which the action arises or the appellate court

in which the appeal or original action is filed.

(B) Access to Items Sealed by Court Order

(1) Counsel for parties to the appeal or original action may

access the record, including items sealed by order of court, except those

submitted exclusively for in camera review. To view in camera matters,

counsel must file a motion in the trial or appellate court demonstrating

why access is necessary to a fair outcome of the appeal or original action.

(2) A party proceeding without counsel may not access matters

sealed by order of court without first obtaining an order of court

permitting access. The party may file a motion in the trial or appellate

court showing why access is necessary to a fair outcome of the appeal or

original action.

(3) Any person or legal entity with standing to seek access to

sealed matters in a record may file a motion in the court in which the

record is located, stating specific reasons why access should be granted

and why the interest in access substantially outweighs the interest in

maintaining the seal.

RAP 29 Reserved.