2013 California Rules of Court
Rule 8.328. Confidential records
(a) Application
This rule applies to records required to be kept confidential by law but does not apply to records sealed under rules 2.550-2.551 or records proposed to be sealed under rule 8.46.
(Subd (a) amended effective January 1, 2011; adopted effective January 1, 2007.)
(b) Marsden hearing
(1)
The reporter's transcript of any hearing held under People v. Marsden (1970) 2 Cal.3d 118 must be kept confidential. The chronological index to the reporter's transcript must include the Marsden hearing but list it as "CONFIDENTIAL" or the equivalent.
(2)The superior court clerk must send the original and one copy of the confidential transcript to the reviewing court with the record.
(3)The superior court clerk must send one copy of the confidential transcript to the defendant's appellate counsel or, if the defendant is not yet represented by appellate counsel, to the appellate project for the district.
(4)If the defendant raises a Marsden issue in the opening brief, the defendant must serve and file with the brief a notice stating whether the confidential transcript contains any confidential material not relevant to the issues on appeal. If the defendant states that the transcript contains confidential material not relevant to the issues on appeal, the notice must identify the page and line numbers of the transcript containing this irrelevant material.
(5)If the defendant serves and files a notice under (4), stating that the transcript contains confidential material not relevant to the issues on appeal, the People may move to obtain a copy of any relevant portion of the confidential transcript. If the defendant serves and files a notice under (4), stating that no such irrelevant material is contained in the transcript, the reviewing court clerk must send a copy of the confidential transcript to the People.
(6)If the defendant raises a Marsden issue in the opening brief but does not serve and file a notice under (4), on written application the People may request a copy of the confidential transcript. Within 10 days after the application is filed, the defendant may serve and file opposition to this application on the basis that the transcript contains confidential material not relevant to the issues on appeal. Any such opposition must identify the page and line numbers of the transcript containing this irrelevant material. If the defendant does not timely serve and file opposition to the application, the reviewing court clerk must send a copy of the confidential transcript to the People.
(Subd (b) amended and relettered effective January 1, 2007; adopted as subd (a).)
(c) Other in-camera proceedings and confidential records
(1)Any party may apply to the superior court for an order that the record include:
(A)A confidential, separately paginated reporter's transcript of any in-camera proceeding at which a party was not allowed to be represented; and
(B)Any item that the trial court withheld from a party on the ground that it was confidential.
(2)The application and any ruling under (1) must comply with rule 8.324.
(3)If the court grants an application for a reporter's transcript of any in-camera proceeding, it may order the reporter who attended the in-camera proceeding to personally prepare the transcript. The chronological index to the reporter's transcript must include the proceeding but list it as "CONFIDENTIAL-MAY NOT BE EXAMINED WITHOUT COURT ORDER" or the equivalent.
(4)The superior court clerk must send the transcript of the in-camera proceeding or the confidential item to the reviewing court in a sealed envelope labeled "CONFIDENTIAL-MAY NOT BE EXAMINED WITHOUT COURT ORDER." The reviewing court clerk must file the envelope and store it separately from the remainder of the record.
(5)The superior court clerk must prepare an index of any material sent to the reviewing court under (4), except confidential material relating to a request for funds under Penal Code section 987.9, showing the date and the names of all parties present at each proceeding, but not disclosing the substance of the sealed matter, and send the index:
(A)To the People; and
(B)To the defendant's appellate counsel or, if the defendant is not yet represented by appellate counsel, to the appellate project for the district.
(6)Unless the reviewing court orders otherwise, confidential material sent to the reviewing court under (4) may be examined only by a reviewing court justice personally; but parties and their attorneys who had access to the material in the trial court may also examine it.
(Subd (c) amended and relettered effective January 1, 2007; adopted as subd (b); previously amended effective January 1, 2005.)
(d) Omissions
If at any time the superior court clerk or the reporter learns that the record omits material that any rule requires to be included and that this rule requires to be kept confidential:
(1)The clerk and the reporter must comply with rule 8.340(b); and
(2)The clerk must comply with the provisions of this rule requiring that the record be kept confidential and prescribing which party's counsel, if any, must receive a copy of sealed material.
(Subd (d) amended and relettered effective January 1, 2007; adopted as subd (c).)
Rule 8.328 amended effective January 1, 2011; adopted as rule 31.2 effective January 1, 2004; previously amended effective January 1, 2005; previously amended and renumbered effective January 1, 2007.
Advisory Committee Comment
Subdivision (c). Subdivision (c)(5) requires the clerk to prepare and send to the parties an index of any confidential materials sent to the reviewing court, showing the date and the names of all parties present. The purpose of this provision is to assist the parties in making-and the court in adjudicating-motions to unseal portions of the record. To protect confidentiality until a record is unsealed, however, the index must endeavor to identify the sealed matter without disclosing its substance.