Vanderbilt Law Review

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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,' there is general agreement that somewhere along the fact-law spectrum lies a point beyond which appellate courts ought not venture. Past it exist questions of "historical fact," the "who, when, what, and where" 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. 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. This alone would compel reevaluation of the relationship between trial and appellate courts. But there is more. Considerations of institutional design and purpose lead to the conclusion that if the courts are to exercise these advantages, they ought to do so much more often in the criminal system, in which ensuring the factual guilt of the convicted is of paramount importance, than in the civil system, in which the avoidance of factual error is not of overriding importance. Yet the reality is exactly backwards. Despite governing standards that appear to preclude evaluation of historical facts in any context, mounting empirical evidence suggests that appellate courts routinely reexamine the evidence supporting a trial verdict in civil cases, but almost never do so in criminal cases.