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...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 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...
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