Criminal Defense of Immigrants
§ 11.67 f. The Records Necessary to Establish Error in the Criminal Case Still Exist
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Successful post-conviction work requires documentation of errors in the procedures used to obtain the conviction. Some criminal courts destroy their records after a certain period of time, and criminal lawyers are following suit. It is therefore urgent to begin immediately the process of gathering the records from the criminal court, court reporters, and original defense counsel. Only if these records exist does the client have a reasonable probability of demonstrating the existence of an error so serious as to warrant reopening the conviction.
If insufficient records exist, the prospects of vacating the conviction may be hopeless. In one 1980 case in which the court file had largely been destroyed, it was necessary to reconstruct the court file from records in defense counsel’s file, appellate counsel’s file, the appellate record, and some documents remaining in the original court file, and to file the reconstructed trial court file along with the motion to vacate the conviction.
There are some issues as to which the prosecution bears the burden of proof. As to these issues, the defense position may be strengthened by the destruction of the criminal records.
 E.g., the court must maintain a record that it delivered the advice concerning potential immigration consequences required by California Penal Code § 1016.5. If it does not, the law presumes the required warning was not given. California Penal Code § 1016.5(b).