Written in Stone? The Record on Appeal and the Decision-Making Process

Brenda C. See, Written in Stone? The Record on Appeal and the Decision-Making Process, 40 Gonz. L. Rev. 157 (2005).

[PDF]    [Westlaw]    [LexisNexis]

Rule Seven of Lord Hale’s renowned Rules for His Judicial Guidance provides: “That I never engage myself in the beginning of a cause, but reserve myself unprejudiced till the whole be heard.”  Lord Hale’s rules for his own judicial conduct were composed more than three hundred years ago at a time when it was more than enough for a judge to aspire to be impartial, “not biased with compassion to the poor or favor to the rich,” and “[t]o abhor all private solicitations . . . in matters depending.”  In twenty-first century litigation, Lord Hale’s admonition to reserve himself unprejudiced “till the whole be heard” does little to answer questions regarding judicial conduct, but rather raises them; such as, when has the whole been heard? Does the record from the trial court bind the decision-making processes of appellate judges, or is it merely a fraction of the information that appellate courts may use?

This article will consider how appellate courts use the record on appeal in the decision-making process. First, this article tracks the origin of the concept of “the record” from pre-Norman Conquest to American statutory rules of appellate procedure. It then explores how the rules of appellate procedure define the “record on appeal,” including what is or should be included in the record, what should be excluded, and what may correct or supplement the record, including the use of outside experts, judicial notice, and independent investigation as means by which the appellate court may transcend the record in its policy-making, or legislative function….Read More

Comments are closed.