ITEM 8G | WHAT DOES THE APPELLATE COURT REVIEW?
It is sometimes said that, in an appeal, the actions of the lower tribunal judge are on trial, not the actions of the parties to the original litigation. In fact, the parties do not have a chance to re-litigate the case before the appeals court. An appeal is not a second trial. The trial level is the only opportunity to submit evidence, examine and cross-examine witnesses, and argue the facts and the law of the case. The appeals court only considers whether the trial was conducted properly and whether the outcome was reached by proper application of the law to the facts.
Only issues that were raised first in the lower tribunal can be argued at the appellate level. The claimed errors must have been brought to the lower tribunal's attention while the lower tribunal still had the opportunity to correct the mistake. For example, if the appellant (or his or her attorney) did not object to the error during trial, the issue has been "waived" on appeal or otherwise has not been “preserved” for review by the appellate court.
At the appellate level, the court is restricted to the record before it. See Florida Rule of Appellate Procedure 9.200. Only the evidence, argument, testimony, and objections considered by the lower tribunal may be considered by the appellate court. This body of pleadings and evidence are called the record. Every piece of evidence and every argument made by the parties' lawyers is recorded into one big document, the record, which is said to "close" once the trial is over and the final judgment issued. Once the record is closed, no more evidence can be included. Also, no more objections to evidence can be made. There are a few exceptions to these general rules, but for the most part, a party cannot offer new evidence or new objections for the appellate court to consider that were not made to the lower tribunal.
The appellate court cannot reverse the decision of the lower tribunal or trial court based on a new document that the trial judge never got to see. The trial was the only opportunity to present that document. So, for example, a party can argue on appeal that the trial court should have allowed certain a document into evidence at trial, but only if the party presented the document to the trial court and objected when the trial court refused to consider it or allow it into evidence, and, after the objection was overruled also made sure the document was still filed in the court file and included in the record on appeal.
In sum, appellate courts do not take new evidence. Appellate courts decide whether the trial judge made errors based on what happened in the lower tribunal. Appellate also generally do not consider new arguments. If an argument or objection was not made to the lower tribunal, the appellate court usually will not consider it for the first time on appeal, unless the error was “fundamental,” meaning it destroyed the fairness of the case.
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this handbook in order to protect yourself from judges/lawyers/organizations who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
