specially concurring and dissenting in part.
Since this case came here on appeal, our rules have been amended to specifically require the transcripts in criminal cases to consist of all proceedings. W.R.A.P. 4.01 *80was amended effective July 10, 1990, to include this paragraph:
“Transcripts in criminal cases shall consist of all proceedings held in open court including but not limited to voir dire, opening statements and final arguments, conferences with the presiding judge in open court and in the court chambers, in addition to the testimony of the case and other required materials.”
Before this amendment the reporting of voir dire, opening statements and final argument was upon request of counsel and not required as part of the record on appeal. These were reported here but deliberately not ordered by Bearpaw’s trial counsel when filing his notice of appeal. The court reporter, upon being advised these portions of the trial were not required for appeal, destroyed them. After the destruction, Bearpaw’s appellate counsel asked for their inclusion in the record.
Although I foresee that this case may ultimately be remanded, the majority is premature in now reversing and ordering a new trial. In arriving at this result, the court ignores the correct procedure which requires the parties to recreate the record pursuant to W.R.A.P. 4.03. The refusal of this court to again abide by its own rules is found in the following sentence:
“The difficulty with any mutually agreed settlement of the record [is that it] would involve self-justification by the trial counsel who initially failed to file an adequate designation of the record.” Maj. opin. at 15-16.
Besides lacking any basis for this statement, I cannot comprehend why any “self-justification by the trial counsel” would necessarily make recreation of the record a problem. First, it is probable that the trial counsel concluded that error did not occur in the voir dire, opening statement or final argument portions of the trial. Second, the record can only be settled by agreement of the prosecuting attorney, defense attorney, and the court. Although settlement of the record may be difficult, it is not impossible. Most in the legal profession, whether fresh out of law school or weathered from years of practice, are thick-skinned enough to prevent criticism from impeding them in performing a court-mandated responsibility. An opportunity to settle the record should have been afforded counsel in this case.
A closer reading of the case upon which the court relies to require a new trial at this time reveals error now being made. In Richardson v. State, 15 Wyo. 465, 485, 89 P. 1027, 1034 (1907), we said:
“Incidental to the power to compel a correct record to be sent up, or a bill of exceptions to be settled, is the power, as it seems to us, of ordering a new trial of the cause, where it is made to appear that the only record in the cause has been destroyed without the possibility of substitution * * (emphasis added)
This statement embraces the very purpose of W.R.A.P. 4.03. A statement of the evidence and the proceedings approved by the parties and court in the manner dictated by the rule can be an “adequate substitute[ ], equally as good as a transcript.” Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 779, 9 L.Ed.2d 899 (1963).
Furthermore, we have considered cases involving incomplete transcripts subsequent to Richardson with differing results. In State v. Riggle, 76 Wyo. 1, 298 P.2d 349 (1956), cert. denied 352 U.S. 981, 77 S.Ct. 384, 1 L.Ed.2d 366 (1957), the appellant, facing capital punishment, challenged his conviction, inter alia, on grounds that the court reporter had not attended the proceedings after the case was sent to the jury. This court found no error because it was not necessary for a reporter to be in attendance after the parties rest. 298 P.2d at 370.
Although Riggle is arguably distinguishable in that appellant’s counsel acquiesced in the reporter’s absence, a more contemporary case details the consequences of not attempting to reconstruct the record. In Petersen v. State, 594 P.2d 978 (Wyo.1979), appellant’s trial for driving while under the influence was recorded electronically using cassette tapes. While preparing to appeal his conviction, it was discovered that one of the cassette tapes was defective and unusa*81ble. This court held that while the rule which preceded W.R.A.P. 4.03 was permissive, failure to use the procedure may adversely affect the appeal. Id. at 980. We then said that when a defendant makes no attempt to settle a record, we will not consider an issue that could be raised had the defendant done so. Id.
In Bearpaw’s case, this court ignores the purpose of W.R.A.P. 4.03 in granting Bear-paw a new trial without having to identify what potential error occurred during voir dire, opening statement or argument and then attempting settlement of the record. If an attempt to settle the record were unsuccessful, then Bearpaw should have to show that the missing portion of the record is “substantial and critical” before a new trial would be ordered. United States v. Pilling, 721 F.2d 286, 296 (10th Cir.1983). See also United States v. Smaldone, 583 F.2d 1129, 1133-34 (10th Cir.1978), cert. denied 439 U.S. 1073, 99 S.Ct. 846, 59 L.Ed.2d 40 (1979).
I would require that the parties first proceed as outlined above.