From: "Joseph M. Reagle Jr." <reagle@mit.edu>
Date: Wed, 15 May 1996 18:51:47 +0800
To: Michael Froomkin <froomkin@law.miami.edu>
Subject: Re: (legal) Re: CDA Dispatch #10: Last Day in Court
Message-ID: <9605150217.AA26984@rpcp.mit.edu>
MIME-Version: 1.0
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At 06:06 PM 5/14/96 -0400, you wrote:

>You can appeal directly on the merits.  And you do so.  The higher court 
>decides all questions of law de novo (ie pays no deference ot tyhe 
>decision of the court below beyond whatever persuasive power it may 
>have), but must accept the factual record as presented ("found") by the 
>court below.  Thus the importance of the trial testimony at this stage.

        Ok, thank you for clarifying that. One question regarding the "de
novo," if a lower court decides to restrict its ruling to a specific aspect
of the case ("indecency") can the higher court broaden the scope of its
ruling, or must its ruling be with specific regards to the scope of the
lower court. (I don't know if the appeal can be on the basis of the scope.)

BTW: This is what a lawyer/professor was able to tell me. As you can see I
was thinking of a garbled version of a jury trial:


I'm not familiar with the case, so I cannot speak to its specifics, 
however here is the general concept of appeals in the U.S. Courts:  At 
the trial of any case there are two categories of issues to be 
resolved--those called "factual" issues and those called "legal" issues.  
Only legal issues are subject to appeal in a higher court.

If there is a jury trial, the "facts" are what the jury decides 
(including, en route to their decision, which witnesses to believe) and 
this is called the verdict.  The verdict per se is not subject to 
appeal.  The "law" is what the judge decides, and can include matters of 
procedure as well as matters of substance.  Typically these are 
decisions about what evidence to admit, what instructions to give to the 
jury, what motions to grant or deny, etc.  All of this is subject to 
appeal.  If the appeal necessitates a new trial, the new jury starts 
over with new testimony, and reaches its own conclusion on the 
facts--but this is not really an "appeal" of the first jury's verdict.

If there is no jury at the first trial, the trial judge wears both hats, 
finding the facts and making conclusions of law--but keeping these 
decisions separate in his or her opinion.  Only the judge's conclusions 
of law in such trials are subject to appeal.
_______________________
Regards,       Men govern nothing with more difficulty than their tongues,
               and can moderate their desires more than their words. -Spinoza
Joseph  Reagle      http://farnsworth.mit.edu/~reagle/home.html
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