Eric Magnuson, Stephen Safranski
As most litigators know, the federal courts of appeals generally do not hear evidence, but instead examine whether the District Court has committed error based on the evidentiary record before it. Thus, the courts of appeals review judgments and certain orders on a closed record, relying on the District Courts’ gatekeeping function to assure that evidence is reliable and relevant. The basic rule regarding composition of the record is found in Federal Rule of Appellate Procedure 10(a), which provides that the record on appeal consists only of the “original papers and exhibits filed in the District Court,” “the transcript of proceedings, if any,” and “a certified copy of the docket entries prepared by the District Court clerk. Rule 10’s scope reflects the fact that it would frustrate the appellate courts’ error correction function to allow litigants to “move the goalposts” by introducing new evidence at appeal.
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