§16 Standards of Review


Appellate courts apply different tests or “standards of review” to various issues. Trial court or district court decisions fall into four categories: (1) issues of law; (2) issues of fact; (3) mixed issues of law and fact; (4) issues of trial court discretion. The question of whether or not the trial court committed and error is reviewed by three standards: (1) de novo or independent of trial court; (2) “clear” and “obvious” plain error or harmless; (3) abuse of discretion.

A. Issues of Law and Legal Questions

If the issue is a legal question or matter of law, the appellate court will review it de novo or independent of the trial court without deference to the trial court’s decision. The trial court and judge receives no deference because the decision was either right or wrong and the appellate court has the exclusive expertise on matters of law. For example, issues implicating constitutional rights are issues of law. Bose Corp. v. consumer’s Union of United States, Inc., 466 U.S. 485, 80 L.Ed.2.d 502, 104 S.Ct. 1949 (1984).

B. Issues of Fact and Findings of Fact Questions

A factual ruling may not be reversed unless it is plainly wrong or without evidence to support it. Appellate courts will reverse factual determinations only if they are “clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 84 L.Ed.2d 518, 105 S.Ct. 1504 (1985).

A factual finding “is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson, at 573 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L.Ed 746, 68 S.Ct. 525 (1948) .

The plain error test applies to issues not raised before the district court. United States v. Garcia-Sanchez, 189 F.3d 1143, 1147 (9th Cir. 1999). The Defendant has the burden of showing the error affects substantial rights.

“[T]he trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.” Anderson, at 574-75.

The “clear error” test insulates virtually all fact credibility determinations from reversal. But findings of fact which result from a misapprehension as to the applicable law lose the insulation of the clearly erroneous rule.

If there is enough evidence to support the trial court’s finding, the appellate court will usually not reverse. Defendant’s admissions in plea agreements and statements will also not be disputed or reversed on appeal. Appellate court will not overturn a verdict supported by probative evidence even if the weight of the evidence is against it. Lavender v. Kurn, 327 U.S. 645, 90 L.Ed. 916, 66 S.Ct. 740 (1946).

C. Issues of Mixed Law and Facts

“[T]he proper characterization of a question as one of fact or law is sometimes slippery.” Thompson v. Keohane, 516 U.S. 99, 110-111, 133 L.Ed.2d 383, 116 S.Ct. 457 (1995). For example, whether the witness at a suppression hearing is believable or credible is a question of fact, not law.

The border between “fact” and “law” can be drawn by conducting a “functional” analysis between the types of issues a trial judge is better situated to determine and the appellate court. See, Miller v. Fenton, 474 U.S. 104, 88 L.Ed.2d 405, 106 S.Ct. 445 (1985)(functional analysis why voluntariness of confession is question of law).

Whereas questions of fact are always subject to the “clear error” test, legal issues and rulings of the trial court are reviewed independently without limitation. Pullman-Standard v. Swint, 456 U.S. 273, 287, 72 L.Ed.2d 66, 102 S.Ct. 1781 (1982). The plain error test has four parts: (1) must be error; (2) error must be “clear” or “obvious”; (3) error affected substantial rights; (4) seriously affects the fairness, integrity, or public reputation of the judicial proceeding.

D. Issues of Trial Court Discretion

Trial court discretionary rulings are reviewed under the highly deferential “abuse of discretion” standard. For this reason, a claim of abuse of discretion stands a better chance of reversal or remand if framed in terms of misunderstanding or misapplication of principles of law or the misapprehension of the relevant facts. Review for abuse of discretion has three components: (1) did the trial court have discretion? (2) did the trial court recognize and exercise discretion? (3) did the trial court exercise its discretion erroneously?

If the trial judge weighed probative value against prejudicial impact in excluding evidence, the appellant will fare better by claiming the court’s failure was not in giving more weight to one side of the scale than the other, but in misunderstanding the meaning of prejudice.

For example, whether or not a Defendant is entitled to a continuance and for how long receives great deference to the judge’s decision, and is not appealable. Similarly whether a particular piece of evidence is more probative than prejudicial receives great deference. An informed choice by the judge among alternatives requires the trial court’s determination be based on a firm factual foundation. The question is: did the judge understand and correctly apply the law?

Did the trial judge rely on an improper factor? Did the judge fail to exercise choice in a situation calling for choice? Did the judge adhere to a uniform policy in a situation calling for case-specific balancing? Did the judge’s rulings prejudice the Defendant and commit constitutional trial error?

These are all questions for review under the “abuse of discretion” standard when a judge makes a ruling that is not within the range of decisions a reasonable judge could have made under the circumstances. See, Cooter & Gel1 v. Hartmarx Corp., 496 U.S. 384, 400, 110 L.Ed.2d 359, 110 S.Ct. 2447 (1990) .

E. Ninth Circuit Standards of Review

The Ninth Circuit has determined standards of review for issues of law, fact, mixed issues of law and fact and discretionary decisions of the trial court. It’s important to determine and argue in the appeals brief the proper standard of review for each issue being appealed. See, Leicester v. Warner Bros., 232 F.3d 1212, 1216 (9th Cir. 2000).

Independent or de novo review on issues of law and rulings of the trial court are unlimited. Orthopedic Hospital v. Belshe, 103 F.3d 1491, 1495 (9th Cir. 1997), cert.denied, 522 U.S. 1044 (1998); United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. 1984); cert.denied, 469 U.S. 824 (1984); Orthopedic Hospital v. Belshe, 103 F.3d 1491, 1495 (9th Cir. 1997), cert.denied, 522 U.S. 1044 (1998).

Examples of issues of law and rulings reviewable without limitation:

  • Entitlement to jury trial
  • Statutes of limitations
  • Venue determinations
  • Jurisdictional issues and questions of standing
  • Decisions concerning stare decisis
  • Issues of mootness and ripeness
  • Immunity from suit under Eleventh Amendment or sovereign immunity
  • Choice of law decisions
  • Determinations of state law, federal law and foreign law
  • Granting or denying petitions for habeas corpus
  • Constitutionality of state statute
  • Dismissal for failure to state a claim
  • Judgment on the pleadings
  • Denial of motions to intervene of right
  • Granting or denying summary judgment
  • Sufficiency of evidence to support a jury verdict
  • Issues implicating constitutional rights
  • Statutory interpretations
  • Application of hearsay rule
  • Jury instructions correctly stating law or elements of offense
  • Judgment is void
  • Dismissal of complaint or indictment for lack of subject matter jurisdiction
  • Decision to vacate judgment
  • Dismissal of complaint or indictment for lack of personal jurisdiction
  • Interpretation of extradition treaty

For example; legal issues include challenges to what the jury instructions say the law is, or the meaning of a statute or sentencing guideline. See, United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir. 1999).

Factual determinations are reviewed under the “clearly erroneous” standard. See, Friends of Yosemite Valley v. Norton, 348 F.3d 789 (9th Cir. 2003)(“[W]e review the district court’s findings of fact after a bench trial for clear error.”).

In reviewing mixed issues of law and fact, the question is, “Has the rule of law as applied to the established facts been violated?” McConney is the standard for review in the Ninth Circuit.

In reviewing discretionary decisions and rulings, district court abuses discretion if it applies the incorrect substantive law. Monterey Technical Co., v. Wilson, 125 F.3d 702, 705 (9th Cir. 1997); See, Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884, 887 (9th Cir. 2001).

Examples of discretionary decisions and rulings reviewable under abuse of discretion:

  • Contempt, sanctions and punishment imposed
  • Dismissal for failure to serve summons and complaint in timely manner
  • Dismissal of informa pauperis complaint on frivolous grounds
  • Dismissal for lack of prosecution
  • Dismissal for failure to follow local rules
  • Decision to hear a declaratory relief action
  • Granting or denying leave to amend a complaint
  • Choice of law decisions
  • Refusal to enter default judgment
  • Denying motion to continue trial date
  • Voir dire matters
  • Jury matters such as adjournment of jury during trial
  • Trial court comments and questioning witnesses during trial
  • Trial court control over closing arguments
  • Granting or denying motion to reopen trial or judgment for new evidence
  • Decision on motion for mistrial
  • Grant of motion for new trial
  • Denying motion for extension of time to file notice of appeal
  • Granting or denying motion to quash a subpoena
  • Denying motion for consideration

Examples of evidentiary rulings reviewable under abuse of discretion:

  • Admission or exclusion of evidence
  • Decisions whether to take judicial notice (Fed.R.Evid. 201)
  • Precluding a witness from testifying
  • Admission or exclusion of expert testimony
  • Control of manner of questioning
  • Rulings on relevancy of evidence and admission of hearsay
  • Sufficiency of authentication of document
  • Rulings regarding right and extent of cross-examination

Other decisions and rulings reviewable under abuse of discretion:

  • Refusal to appoint or disqualify counsel
  • Refusal to disqualify judge
  • Granting or denying injunctive relief
  • Jury instructions as a whole are misleading or inaccurate
  • Challenges to language in trial court’s jury instructions (law reviewed de novo)
  • Decision whether to amend findings of fact and conclusions of law in light of newly discovered evidence
  • Granting or denying relief from judgment or order (Fed.R.Civ.P 60(a) or (b))

The abuse of discretion standard requires an objective review of the record to determine whether the district court considered and weighed the relevant factors and whether a clear error of judgment was made. United States v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993). cert.denied, 510 U.S. 881 (1993). The Ninth Circuit reverses under abuse of discretion standard where it has definite and firm conviction that the district court committed clear error of judgment, United States v. Finley, 301 F.3d 1000,1007 (9th Cir. 2002), or the decision was arbitrary and unreasonable. The Ninth Circuit will not condone irrational or irresponsible behavior by the district court. United States v. Bates, 917 F.2d 388, 395 (9th Cir. 1990). The district court abuses its discretion when it makes an error of law or when its discretion was guided by erroneous legal conclusions. United States v. Martin, 278 F.3d 988, 1001 (9th Cir. 2002). See, United States v. Henderson, 241 F.3d 638, 646 (9th Cir. 2000), as amended (Mar.5), cert.denied, 532 U.S. 986 (2001); United States v. Tucor Int’l, Inc., 238 F.3d 1171, 1175 (9th Cir. 2001).

F. Procedures, Reversals and Remands

In evaluating whether or not the trial court committed error and there are sufficient issues and a strong likelihood for reversal or remand, the Defendant must decide whether to pursue a direct appeal or a collateral attack under 28 U.S.C. §2255 or §2241. This is a tactical decision since a direct appeal can take up to 18 months in most jurisdictions. Issues raised in a section 2255 motion, except for ineffective assistance of counsel, cannot be decided by the trial court during the pendency of a direct appeal in most cases.

Appellate courts insist that trial judges be given a fair opportunity to correct their own errors. Litigants must first raise their objections in the trial court or be penalized. The pertinent inquiry is not whether the trial is free of errors, but free of errors that affected the result and deprived the Defendant of “substantial rights.” See, Kotteakos v. United States, 328 U.S. 750, 765, 90 L.Ed. 1557, 66 S.Ct. 1239 (1946)(requiring that appellate courts consider only errors affecting substantial rights).

On remand for further proceedings after a decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. It must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces. Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943 (3rd Cir. 1985).

G. Judicial Complaints and Misconduct

As Justice Potter Stewart sagely observed during a press conference at the Supreme Court at the time of his retirement: “[Tlhe mark of a good Justice or any judge is one whose Opinions you can read and, after you have read them, you have no idea whether the judge was a man or a woman, a Republican or a Democrat, a Christian or a Jew, or – if a Christian, a Protestant or Catholic. You just know that he or she was a good judge. It is the first duty of a judge to remove from his judicial work his own social and philosophical and political or religious beliefs, and not to think of himself as being here as some great philosopher-king to just apply his own theology.” — Barrett McGurn, America’s Court: The Supreme Court and the People (1997).

This was quoted by the Ninth Circuit in United States v. Ameline, 409 F.3d 1073, 1105 n.3 (9th Cir. 2005).
A “Complaint of Judicial Misconduct and Disability” can be filed with the Judicial Council of the Circuit Court of Appeals pursuant to Rule 1 and 2 governing complaints.


H. Writ of Mandamus

In exceptional circumstances, a defendant invokes jurisdiction of the Circuit Court of Appeals by immediately petitioning for a “Writ of Mandamus” in rare, but important cases, where district court trial judges exceed their lawful powers; when they issue critical rulings yet cannot identify a statute or rule that gives them the authority to do so.

A writ of mandamus is an original action in the appellate court pursuant to the “All Writs Act,” 28 U.S.C. §1651. “Abuse of discretion sufficient for reversal in an appeal is not enough to warrant mandamus; for mandamus to issue, a decision must qualify as ‘usurpation of judicial power.'” Banov v. Kennedy, 694 A.2d 850, 858 (D.C. 1997); See, Kerr v. United States, 426 U.S. 394, 403, 48 L.Ed.2d 725, 96 S.Ct. 2119 (1976).

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