Appellate Courts, Historical Facts, and the Civil-Criminal Distinction

The standard justification for the general prohibition against the evaluation of facts by appellate courts centers on those courts' perceived incompetence, relative to trial-level fact finders, to engage in the task. This Article examines that justification and finds it wanting. While trial courts and juries are indeed better-positioned to assess much of what takes place at trial, this advantage is not universal. An appellate court's access to and reliance on a transcript of the proceedings below confers on it certain advantages not only because it aids in information retention, but also because its textual basis allows the court to perform more complex intellectual operations with the evidence. Further, because-as research has consistently demonstrated-people perform poorly at using demeanor to determine whether a person is telling the truth, reliance on a transcript may place appellate courts in a superior position to assess witness credibility than those who actually observed the testimony. Appellate judges may also enjoy a competence advantage relative to jurors based on a greater range of experience with certain types of cases or evidence, and are at least the equals of trial-level fact finders when it comes to the assessment of circumstantial and documentary evidence. Having concluded that the institutional competence-based justification for appellate factual deference is not completely up to the task, the Article proceeds to examine the standards governing appellate review of facts and their implementation in both the criminal and civil systems. It also explores possible alternative justifications for appellate deference, including the lack of a need for appellate review, the efficient allocation of judicial resources, the value of finality, and the importance of the role of the jury. Based on this analysis, coupled with a consideration of the disparate functions of the two systems, the Article concludes that any appellate review of facts ought to be relatively more aggressive in the criminal than in the civil system. Accumulating empirical evidence, however, suggests that courts have become increasingly likely to reevaluate facts in civil cases, while declining to do so in criminal cases. The Article finally proposes that appellate review of factual matters be recalibrated to take express account of institutional competence on a case-by-case basis. Such a focus would not only render appellate factual review more transparent and consistent, but would also tend to reverse the imbalance between the criminal and civil systems. Among the pieties of our legal system is the notion that appellate courts do not engage in factual evaluation. Murky though the distinction between "fact" and "law" may be,1 there is general agreement that somewhere along the fact-law spectrum lies a point beyond which appellate courts ought not venture.2 Past it exist questions of "historical fact,"3 the "who, when, what, and where"4 series of questions that we have deemed only juries or trial judges to be capable of answering. Just as well accepted is the reasoning behind this juridical line in the sand. Simply put, we believe that appellate courts are not very good at fact finding. As it is most often articulated, this justification consists largely of reasoning thought to flow from the reality that appellate judges are not present in the courtroom to witness testimony and evidence firsthand.5 Having instead only a transcript of the proceedings below, the reviewing court lacks information critical to a full understanding of what took place. Under the conventional wisdom, then, appellate courts would likely do a worse job of factual evaluation, making the endeavor pointless even without regard to the consumption of judicial resources and other systemic effects it would entail. This Article contends that the conventional wisdom is misguided. There are, it turns out, many respects in which appellate courts enjoy substantial advantages over trial judges and juries when it comes to the evaluation of historical facts. …