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Standards of Review: De Novo, Clearly Erroneous and Reasonableness

A “standard of review” is an important judicial concept. It determines how much respect an appeals court will give to a decision from the lower court.

When a litigant appeals a case, she argues that the lower court made an incorrect conclusion. And if the court below had done it right, the case would have turned out differently.

However some conclusions from the trial court are more difficult to overturn on appeal than others. Some of them, specifically conclusions of fact, are very hard to overturn because appeals courts apply a high degree of deference to them.

The “standard of review” dictates how much deference an appeals court will apply.

Background: Roles of the Jury and the Judge

To understand the difference between the standards of review, we consider the roles of the jury and the judge in the court system.

The jury serves an important role in the American court system. The jury consists of a diverse set of individuals from the community, a set of individuals who can evaluate evidence together and decide which versions of the facts, such as which witnesses, to believe.

The judge maintains order in the courtroom. Not just order in the sense of keeping the peace, but the legal order. The judge follows legal rules about, for example, what types of evidence to admit (versus types that tend to mislead the jury) and ensures the parties follow many other procedures outlined in court rules. The judge sets the legal backdrop in which the jury makes factual conclusions. If the case requires interpreting a law, the judge determines it.

Decisions of fact versus decisions of law

The jury evaluates facts. That’s its role in the judicial system. It is the jury’s job to make a conclusion about evidence, such as whether a handwriting sample belongs to the defendant, or if the witness description of an event is accurate. When a jury makes a conclusion, the judicial system affords it high respect. That’s because the only time the parties “make their cases,” or display the facts of the case in a persuasive manner, is at trial. The jury is there to see it. The appeals judges will not have been.

A decision of law, on the other hand, is a question in the judge’s realm. Litigants have more success appealing a question of law to an appeals court because appeals courts give less deference to conclusions of law by trial courts. That’s because an appeals judge is a higher expert of law than a trial judge is. It doesn’t take a replay of the facts of the case for an appeals judge to review a legal conclusion. Often, it can be done through briefing and legal arguments.

Judge as the fact-finder

Sometimes the judge will act as the fact-finder. In cases where a jury is not present, the trial judge sees the presentation of facts and makes factual conclusions that would otherwise be in the realm of the jury. Just like the jury is afforded great deference when it makes factual conclusions, so is the trial judge.

Reasonableness standard of review (or substantial evidence)

Appeals courts apply the reasonableness standard of review to a conclusion of fact made by a jury.

An appeals court will only overturn a conclusion under the reasonableness standard if the appeals court finds that no “reasonable” trier of fact could have made the conclusion based on the evidence it saw. Again, because the appeals judges were not there to see the initial presentation of facts, it’s a high bar to overturn a jury’s factual conclusion.

The Supreme Court explained the reasonableness standard in a 1979 criminal case:

A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. A “reasonable doubt,” at a minimum, is one based upon “reason.” Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction.

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal citations omitted).

This standard of review is also called the “substantial evidence” standard of review because it allows an appeals court to overturn a fact-finding conclusion if the conclusion has no substantial evidence to support it.

Clearly erroneous standard of review

Appeals courts apply the clearly erroneous standard of review to a conclusion of fact made by a judge. That means the court will only overturn the conclusion if the court finds it to be clearly wrong.

This standard is nearly the same degree of deference as is afforded in the “reasonableness” standard, but it is slightly higher, meaning an appeals court will have to find a slightly greater degree of wrongness in the conclusion in order to overturn it.

A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

De novo standard of review

Appeals courts apply the de novo standard of review to questions of law. A question of law is a legal conclusion made by a judge. Our judicial system deems an appeals court judge a higher expert of legal decision-making than a trial judge, or even than a lower appeals court judge. Thus, an appeals court is free to take a “fresh look” at a legal conclusion.

In de novo review, a court can apply a fresh analysis to the conclusion, without giving any deference to the lower court’s decision. Questions on appeal under de novo review are easier to overturn than under the other deferential standards.

Mixed questions of law and fact

Of course there’s a middle ground. Sometimes a question on appeal addresses whether the lower court correctly applied the facts to a legal analysis. The Supreme Court described a mixed question of law and fact as one in which the facts are established, the law is determined, but the issue involves whether the facts were correctly applied to the law. Pullman-Standard v. Swint, 456 U.S. 273, n.19 (1982).

In such a case, a court may conduct a preliminary analysis to determine whether the conclusion required primarily legal or factual work. Lawyers will argue on this point, obviously, because the difference between a de novo standard and clearly erroneous, for example, can make or break the appeal.

More information

For more information on standards of review, see this report by the Georgetown University Law Center.

Standards of Review: De Novo, Clearly Erroneous and Reasonableness

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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