Off the record.

• Author: Walbolt, Sylvia H.
• Position: Appellate procedure

Every good appellate lawyer knows that an appeal is constrained by the record formed below. This "duty of faithfulness to the record is paramount, superseding even loyalty to the appellate client." (1) Because of the importance of this settled precept of appellate law, the lawyer who strays outside the record on appeal inevitably loses credibility with the appellate court. Egregious cases may result in sanctions. (2) In one court's words, "[t]hat an appellate court may not consider matters outside the record is so elemental there is no excuse for an attorney to attempt to bring such matters before the court." (3)

The purpose of this article is not to address or question the soundness of this "elemental" rule. Rather, we address four discrete, not-so-"elemental" issues with respect to using nonrecord facts on appeal. These issues exist at the edges of the "elemental" rule and present challenges for the appellate practitioner in determining the scope and application of the general rule.

Supplementing the Record with Nonrecord Facts

As a general rule, an appellate rule allowing a party to supply omitted parts of an incomplete record "is not intended to cure inadequacies resulting from a party's failure to make a record during the proceedings." (4) Rather, it is intended to allow the record to be supplemented with matters actually before the trial court, but that were not formally filed or included in the record itself. (5) But, like all general rules, there are exceptions. Certainly, non-record facts that moot an appeal can and should be brought to the court's attention. But even nonrecord facts directed to the merits of the appeal can sometimes be brought properly to the appellate court's attention.

The Seventh and Ninth circuits, citing the U. S. Supreme Court, allow a plaintiff appealing the dismissal of its complaint to provide the appellate court with nonrecord evidence that serves to explain how the plaintiff might prove the dismissed claim if allowed to go forward. (6) In one such case, Judge Posner wryly acknowledged that the defendant was undoubtedly "howling with rage" while reading the court's recitation of those nonrecord facts in reversing the dismissal of the case. In Florida, we would have not only "howled with rage," we would have argued those facts should have been brought to the attention of the trial judge below through a timely request to amend to reflect such facts.

Florida does look to nonrecord facts on some specific appellate issues. In Brim v. State, 695 So. 2d 268, 274 (Fla. 1997), the Florida Supreme Court conducted a Frye review of DNA evidence, consulting scientific materials that were not in the trial record. It observed that to do otherwise would preclude an appellate court from determining "whether there was general acceptance within the relevant scientific community." (7) In doing so, the court cited the observation of Chief Justice McMorrow of the Supreme Court of Illinois that "the general acceptance issue transcends any particular dispute" because the court is being asked to "'establish the law of the jurisdiction for future cases.'" (8) On remand in Brim, the Second District Court of Appeal stated the parties would be allowed to "supplement the record with updated scientific literature, but only for the purpose of measuring levels of acceptance or disagreement within the relevant scientific community," while expressing concern about intermediate appellate courts consulting materials outside the record. (9)

Beyond these narrow circumstances, some appellate courts have declared their "inherent equitable power to supplement the record with information not reviewed by the [trial] court," although "[s]uch authority is rarely exercised." (10) Indeed, the 11th Circuit has exercised such authority even after it has rendered its decision, although at that late stage it "would require the clearest showing of just need to warrant the supplementation." (11)

Exercising this "inherent" power, courts have allowed the appellate record to be supplemented with matters not before the trial court in a variety of circumstances. (12) In one case, rather than supplementing the appellate record and proceeding to rule on that basis, the appellate court remanded to the trial court the issue of whether the habeas petitioner claiming discrimination in the formation of juries could supplement the record with supporting affidavits setting forth the requisite statistical information. (13)

Courts have variously described the standard as whether acceptance of the proffered material into the appellate record "would establish beyond any doubt the proper resolution of pending issues" and as whether it "would aid in making an informed decision" even if it "will not conclusively resolve an issue on appeal." (14) Not surprisingly, the decision in any case appears ultimately to depend on whether the appellate court thinks it is the right thing to do.

These and other appellate decisions show that one should not assume that important facts that did not make their way into the record below can never be brought to the attention of the appellate court through a motion to supplement the record with nonrecord facts. It goes without saying that it needs to be disclosed that the facts were not before the trial court. The attorney should give a reasoned explanation as to why these facts nonetheless should be considered by the appellate court.

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