Blurring of Trial and Appellate Rules

These appellate rules and practices, and indeed the very division between trial and appellate court functions, depend largely on the form of the trial record and documentary evidence. Virtually all that ascends to the reviewing court from the finder­of­fact is reduced to print. When the reviewing court works with these printed materials, it deals with a relatively incomplete record­a record void of secondary context. From the abridgements of facts and reasons suited to typographic texts, appellate judges derive objectified, systematic, and abstract rules, which they use to resolve both the current controversy and future cases.

In an era of paratexts, the dichotomy between trial and appellate courts may blur. The more dynamic electronic record will tend to subvert all of the current rules and practices of appellate courts just identified. As the appellate tribunal is exposed to paratexts, the appellate judge may find it increasingly difficult to maintain distance from the trial's context and to resist becoming enmeshed in the re­evaluation of factual findings and evidentiary rulings.

To date, four states (Kentucky, Michigan, North Carolina, and Washington) have experimented with videotaped trial proceedings as either the exclusive record an appeal or as a supplement to the printed transcript. ²⁰¹ Accordingly, the experiences of courts in these states offer revealing preliminary evidence about the potential influence of paratexts on the appellate process. A recent, comprehensive study by the National Center for State Courts ("NCSC") ²⁰² indicates that appellate judges who view trial videotapes may be tempted to consider the credibility and demeanor of witnesses in making their decisions. ²⁰³ Indeed, some appellate judges, aware of this temptation, have expressed reservations about their own ability to insulate themselves from being influenced inappropriately by these factors. ²⁰⁴ Clearly, in several important respects, the paratext effectively encourages the reviewing court to become a second trier­of­fact, thereby undermining the trial­appellate court dichotomy.