What the record is, and why it decides your appeal
An appellate court doesn't hear witnesses or look at new evidence. It reads the record. Understanding what's in it explains most of what an appeal can and can't do.
The record on appeal is everything that was filed in the trial court, the exhibits that were admitted or offered, and the transcripts of the hearings and the trial. It is the whole universe of the appeal. If something isn't in it, for the appellate court it didn't happen.
Why that matters
Clients often want to tell the appellate court what the jury never heard: a witness who wasn't called, a document no one found in time. The direct appeal can't consider it. Some of those things can be raised later in a post-conviction motion, or a motion for relief from judgment in a civil case, where new facts are allowed.
An appeal is a conversation about what happened in the courtroom, held entirely on paper.
Preserved, or not
An appellate court generally only reviews errors that someone objected to at the time, with the reason stated. An objection that wasn't made, or was made for a different reason, may not be heard, unless the error was so basic that it undermines the whole trial. That is the first thing Theodora checks when she reads a transcript.
Building the record
The lawyer on appeal designates what goes into the record, orders any transcripts that are missing, and sometimes asks the trial court to correct the record where it is wrong. It takes weeks, and it is where much of the early work of an appeal happens.
- Pleadings, motions and orders filed in the trial court
- Exhibits admitted, and those offered and refused
- Transcripts of the trial and the hearings that matter
- The jury instructions, and the ones that were requested