rests its decision on a clearly erroneous finding of a material fact, or rules in a completely irrational manner. 
Abuse of discretion exists when the record contains no evidence to support the trial court’s decision. 
When it comes to questions of law, the appellate courts employ a different standard of review called de 
novo review.  De novo review allows the appellate court to use its own judgment about whether the trial 
court correctly applied the law. Appellate courts give little or no deference to the trial court’s determinations 
and may substitute its own judgment on questions of law. Questions of law include interpretation of statutes 
or contracts, the constitutionality of a statute, the interpretation of rules of criminal and civil procedure. Trial 
courts presume that laws are valid and do not violate the constitution, and the burden of proving otherwise 
falls on the defendant. Trial courts sometimes get it wrong. De novo review allows the court to use its 
own judgment about whether the court correctly applied the law.  Appellate judges are perhaps in a better 
position to decide what the law is as the trial judge since they are not faced with the fast-pace of the trial and 
have time to research and reflect. 
Sometimes the trial court must resolve a question in a case that presents both factual and legal issues. 
For example, if police stop and question a suspect, there are legal questions, such as whether the police 
had reasonable suspicion for the stop or whether the questioning constituted an “interrogation”, and factual 
questions, such as whether police read the suspect the required warnings. Mixed questions of law and fact 
are generally reviewed de novo. However, factual findings underlying the lower court’s ruling are reviewed 
for clear error. Thus, if the application of the law to the facts requires an inquiry that is “essentially factual,” 
review is for clear error. 
In reviewing the trial court record, the appellate court may discover an error that parties failed to complain 
about. Generally, appellate courts will not correct errors that aren’t complained about, but this is not the case 
when they come upon plain error. Plain error exists “[w]hen a trial court makes an error that is so obvious 
and substantial that the appellate court should address it, even though the parties failed to object to the error 
at the time it was made.” 
2 If the appellate court determines that the error was evident, obvious, clear and 
materially prejudiced a substantial right (meaning that it was likely that the mistake affected the outcome of 
the case below in a significant way), the court may correct the error. Usually, the court will not correct plain 
error unless it led to a miscarriage of justice. 
The selection of the appropriate standard of review depends on the context. For example, the de novo 
standard applies when issues of law tend to dominate in the lower court’s decision. When a mixed question 
of law and fact is presented, the standard of review turns on whether factual matters or legal matters tend to 
dominate or control the court’s decision. The controlling standard of review may determine the outcome of 
the case. Sometimes the appellate court can substitute its judgment for that of the trial court and overturn a 
holding it does not agree with, but other times, it must uphold the lower court’s decision even if it would 
have decided differently. 
Appellate Decisions 
In most appeals filed in the intermediate courts of appeal, the appellate panel will rule but not write a 
supporting document called a written opinion stating why it ruled as it did. Instead, the appellate panel will 
affirm the lower court’s decision without an opinion (colloquially referred to as an AWOP). Sometimes, 
however, appellate court judges will support their decisions with a written opinion stating why the panel 
decided as it did and its reasons for affirming (upholding) or reversing (overturning) the lower court’s 
decision. The position and decision by the majority of the panel (or the entire court when it is a supreme 
court case), is, not surprisingly, called the majority opinion. Appellate court judges frequently disagree with 
2. (http://www.law.cornell.edu/wex/plain_error.) 
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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