The Second Trier-of-Fact Phenomenon

The consequences of this second trier­of­fact phenomenon may play out in one of two ways. On the one hand, the appellate court may claim to adhere to formal rules of appellate review yet actually take a more activist role in evaluating factual and evidentiary determinations of the trial court. While this almost certainly would lead to more frequent reversals of lower court decisions, appellate courts might continue to operate under the same rules of "due deference," "harmless error," and "verdict against the clear weight of the evidence." But these ostensibly deferential labels may well mask a profoundly intrusive procedure­one that belies these old rules of restraint with a bold new appellate confidence.

On the other hand, an appellate court may take exactly the opposite tack and become less intrusive. Viewing the paratext may exhance the deference traditionally given to the trial court. Kentucky's court administrator, for example, observed that video recording has proven popular with the state's trial judges because "in their eyes, it ensures that appeals court judges reviewing their rulings 'will see the same trial they saw."' ²⁰⁵ The implication is that if appellate judges could only see what their trial colleagues saw, far fewer trial judgments would be overturned.

Common to both of these scenarios, however, is the fact that the appellate court must take seriously its new role as second trier­of­fact. That is, whatever the reviewing court's response, the paratext will force it to monitor more of the trial court's processes than the printed transcript ever did or could.