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New Evidence On Appeal, Jeffrey C. Dobbins

Jeffrey C. Dobbins

Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below.

There are, however, exceptions to this traditional principle. Whether presented through amicus briefs, social-science-laden “Brandeis Briefs,” petitions for discretionary review, or other mechanisms for supplementing the record, appellate courts often consider and rely upon new evidence. The literature regarding both the traditional rule and the exceptions is limited, and neither courts …