August 26, 2019 Articles

Expanding the Record on Appeal: What Every Lawyer Needs to Know

Federal appellate courts generally cannot consider new evidence on appeal, but several important exceptions exist.

By William Feldman

Legal research will likely produce hundreds of decisions by federal appellate courts around the nation reiterating a black letter legal principle: a federal appellate court may not consider new evidence presented for the first time on appeal and may not consider facts that were not before the district court at the time of the challenged ruling. Well aware of this principle, many lawyers will not attempt to introduce evidence on appeal that was not before the district court.

But suppose an important new fact has developed after the final judgment is entered. Just how absolute is the prohibition against expanding the appellate record? Like most other areas of the law, the black letter rule has its exceptions. This article explores four such exceptions: (1) judicial notice, (2) expansion of the record under Federal Rule of Appellate Procedure 10(e), (3) an appellate court’s inherent equitable authority to expand the record, and (4) the supplementation “in aid of the appeal” exception.

For each exception, the window is narrow, if it exists at all. Do not expect to introduce a world of evidence that was never presented below. If, however, there is one salient fact that is critical to the appeal, the window might be just wide enough to let that information through.

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