losing party of a fair trial, it may issue an order of reversal. When the case is reversed, in most instances, the 
court simply will require a new trial during which the error will not be repeated. This is called a remand. 
In some cases, however, the order of reversal might include a direction to dismiss the case completely, for 
example when the appellate court concludes that the defendant’s behavior does not constitute a crime under 
the law in that state. When reading an opinion, also known as decisions, from an appellate court, you can 
tell the procedural history of a case (i.e., a roadmap of where the case has been: what happened at trial, what 
happened as the case was appealed up from the various appellate courts). 
Standards of Review 
You have just learned that one function of the appellate courts is to review the trial record and see if there is 
a prejudicial or fundamental error.  Appellate courts do not consider each error in isolation, but instead, they 
look at the cumulative effect of all the errors during the whole trial. Appellate court judges must sometimes 
let a decision of a lower court stand, even if they personally don’t agree with it. Sports enthusiasts are familiar 
with the use of instant/video replay, and it provides us a good analogy. Officials in football, for example, will 
make a call, a ruling on the field, immediately after a play is made. This decision, when challenged, will be 
reviewed, and the decision will be upheld unless there is “incontrovertible evidence” that the call was wrong. 
When dealing with appeals, how much deference to show the lower court is the essence of the standard of 
review. Sometimes the appellate courts will give great deference to the trial court’s decision, and sometimes 
the appellate courts will give no deference to the trial court’s decision. How much deference to give is based 
on what the trial court was deciding—was it a question of fact, a question of law, or a mixed question of law 
and fact. 
The appellate court will allow a trial court’s decision about a factual matter to stand unless the court clearly 
got it wrong. The appellate court reasons that the judge and jury were in the courtroom listening to and 
watching the demeanor of the witnesses and examining the physical evidence. They are in a much better 
position to determine the credibility of the evidence. Thus, the appellate court will not overturn findings of 
fact unless it is firmly convinced that a mistake has been made and that the trial court’s decision is clearly 
erroneous or “arbitrary and capricious.” The arbitrary and capricious standard means the trial court’s decision 
was completely unreasonable and it had no rational connection between the facts found and the decision 
made. The lower courts finding will be overturned only if it is completely implausible in light of all of the 
evidence. One court noted, “Where there are two permissible views of the evidence, the fact finder’s choice 
between them cannot be clearly erroneous.” 
1 
Sometimes the law requires, or at the parties’ request, that a trial judge or jury make a special finding 
of fact. Findings of fact are made on the basis of evidentiary hearings and usually involve credibility 
determinations that are better made by the trial judge sitting in the courtroom listening to the evidence and 
observing the demeanor of the witnesses. It is not enough that the appellate court may have weighed the 
evidence and reached a different conclusion unless the decision was clearly erroneous, the appellate court 
will defer to the trial judge. 
Trial judges often make discretionary rulings., for example, whether to allow a party’s request for a 
continuance or to allow a party to amend its pleadings or file documents late. In these matters of discretion, 
the appellate court will only overturn the trial judge if they find such a decision was an abuse of discretion. 
The lower court’s judgment will be termed an abuse of discretion only if the judge failed to exercise sound, 
reasonable, and legal decision-making skills. A trial court abuses its discretion, for example, when: it does not 
apply the correct law, erroneously interprets a law, rests its decision on a clearly inaccurate view of the law, 
1. United States v. Yellow Cab Co., 338 U.S. 338. 342 (1949). 
Introduction to the American Criminal Justice System
281