Originally published in The Legal Intelligencer.
A few months ago, I posted a couple of articles about appellate courts' reliance on amicus curiae briefs and law review articles in deciding cases. In the second of those articles, I discussed a recent Pennsylvania Superior Court decision (Commonwealth v. Brown) that eschewed the use of amicus briefs when "the information contained in the amicus brief was not provided to the trial court for consideration."
Although I noted that this was an unusual position to take, given that amicus briefs almost always contain information not provided to the trial court (and are often found useful by appellate courts for this very reason), a recent U.S. Supreme Court decision highlights the more general problem alluded to in Brown: the use of secondary authority cited in appellate briefs to engage in what amounts to appellate fact-finding.
In Sykes v. United States, the Supreme Court had to determine whether a felony conviction in Indiana for fleeing from police officers in a vehicle was a "violent felony" for purposes of the federal Armed Career Criminal Act (ACCA). Six justices held that it was, while Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan dissented.
In his opinion for five of the justices in the majority, Justice Anthony M. Kennedy contended that statistics on the dangers of fleeing from police in a vehicle, as well as on injuries arising from other violent felonies listed in the ACCA, "confirm the commonsense conclusion that Indiana's vehicular flight crime is a violent felony." In support of this contention, Kennedy cited statistics from a number of recent studies by the International Association of Chiefs of Police, the Bureau of Justice Statistics, and the U.S. Fire Administration, as well as additional statistics from a concurring opinion by Justice Clarence Thomas.
The concurring opinion, in turn, relied on studies by the National Highway Traffic Safety Administration, the National Center for Statistics & Analysis and the Pennsylvania State Police Bureau of Research & Development, as well as reports to the California Legislature, an FBI Law Enforcement Bulletin, a law review article, a book and 10 newspaper articles.
As far as the majority and concurring opinions reveal, none of these studies, reports or articles were contained in the factual record created in the trial court, though they were presumably cited in the parties' (and any amici's) briefs. Yet, as Scalia complained in his dissent, "Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery." How true.
I have noted in another prior article the disturbing trend of some courts, including appellate courts, to rely on extra-record information from the Internet as if it is infallible and properly subject to judicial notice (a trend thankfully constrained in the 3rd Circuit by that court's 2007 decision in Victaulic Co. v. Tieman). But Scalia's dissenting opinion in Sykes pulls back the curtain on a similar trend in Supreme Court jurisprudence: heavy reliance on studies, statistics and other factual material contained in parties' and amici's briefs, when those factual materials were not presented in the district court, where they can be evaluated, challenged, and either accepted or rejected by the finder of fact (whether judge or jury).
The reliance on such factual information that is not part of the record created in the trial court to decide significant issues, such as whether fleeing police in a vehicle is a violent felony, raises serious concerns about the proper role of trial courts and appellate courts. Yet, as I've argued in prior articles, amicus briefs serve a useful function in elucidating difficult issues before appellate courts and providing a broader factual context for the adjudication of important issues that typically arise in the more narrow setting of disputes between individual parties.
There is no easy answer to this dilemma, but if appellate courts, including the Supreme Court, are to remain faithful to the well-established principle that the record on appeal is limited to the facts properly presented and accepted in the trial court, they must be careful not to cross the line from using secondary authority and amicus briefs for background or context to relying on them to find facts that are material to the issues before the appellate courts.
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