Standard of review
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In law, the standard of review is the amount of deference given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower court's decision. A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute, rule or precedent.
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[edit] Appellate review in the United States
In the United States, there are three basic standards of review on appeal: "arbitrary and capricious," "clearly erroneous," and "de novo."
[edit] Arbitrary and capricious
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It has been suggested that Arbitrary, capricious and unreasonable be merged into this article or section. (Discuss) Proposed since April 2011. |
Under the "arbitrary and capricious" standard, a finding of a lower court will not be disturbed unless it has no reasonable basis. For example, a finding of fact from a jury is seldom disturbed on appeal unless it is "arbitrary and capricious." The appellate courts will generally not review such findings unless those findings have no reasonable basis. For example, if a jury finds that a defendant used force during the commission of a crime, the appeals courts will not reverse this finding unless it has no reasonable basis in the testimony or other facts. Similarly, a government agency's decision of an administrative law is reviewed on the arbitrary and capricious standard. Arbitrary and capricious is a legal ruling wherein an appellate court determines that a previous ruling is invalid because it was made on unreasonable grounds or without any proper consideration of circumstances.
Similarly, where a lower court has made a discretionary ruling (such as whether to allow a party claiming a hardship to file a brief after the deadline), that decision will be reviewed for abuse of discretion. It will not be reversed unless the decision is unreasonable.
[edit] Clearly erroneous
Under the "clearly erroneous" standard, where a lower court makes a finding of fact, that finding will not be disturbed unless the reviewing court is left with a "definite and firm conviction that a mistake has been committed" by the lower court.[1] For example, if a court finds that, based on the testimony of a single eyewitness, that a defendant broke a window by throwing a one pound rock over 20 feet, the appeals court might reverse that factual finding based on uncontradicted expert testimony (also presented to the lower court) stating that such a feat is impossible for most people. In such a case, the appeals court might find that, although there was evidence to support the lower court's finding, the evidence taken as a whole—including the eyewitness and the expert expert testimony—leaves the appellate court with a definite and firm conviction that a mistake was committed by the Court below.
[edit] Plain Error
Plain error is a special standard of review used to determine when an appellate court can review an "unpreserved" error, that is, mistakes made by the lower court that were not objected to as the law requires. In such a case, the appellate court may still choose to look at the lower court's mistake even though there was no objection, if the appellate court determines that the error was evident, obvious, and 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.[2]
In federal court, if a party commits forfeiture of error, e.g. by failing to raise a timely objection, then on appeal, the burden of proof is on that party to show that plain error occurred. If the party did raise a timely objection that was overruled, then on appeal, the burden of proof is on the other party to show that the error was harmless error. This approach is dictated by Federal Rule of Criminal Procedure 52, which holds, "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded, [while a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention."[3] The appellate court has discretion as to whether or not to correct plain error. Usually the court will not correct it unless it led to a brazen miscarriage of justice.
[edit] De novo
The third standard of review is de novo, review as if the appellate Court were considering the question for the first time. Legal decisions of a lower court on questions of law are reviewed using this standard. This is also called the "legal error" standard. It allows the appeals court to substitute its own judgment about whether the lower court correctly applied the law. In the Appeals Court Standard of Review, the Appeals Court, based upon Rules of Appellant Procedure, must review non-jury cases de novo to determine if the trial judge came to a reasonable conclusion. In Federal and most United States courts that rule is handled under rule 13 of the court rules. In issues of witness credibility, on de novo review, the determination of the trial court is given great weight. Conclusions of law are reviewed de novo with no presumption of correctness.[4]
A new trial in which all issues are reviewed as if for the first time is called a trial de novo.
[edit] Judicial review in the United States
Generally, the Supreme Court judges legislation based on whether it has a reasonable relationship to a legitimate state interest. This is called rational basis review. For example, a statute requiring the licensing of opticians is permissible because it has the legitimate state objective of ensuring the health of consumers, and the licensing statutes are reasonably related to ensuring their health by requiring certain education for opticians. Williamson v. Lee Optical Co., 348 U.S. 483 (1955)
If, however, the statute impinges on a fundamental right, such as those listed in the Bill of Rights or the due process rights of the Fourteenth Amendment, then the court will apply strict scrutiny. This means the statute must be narrowly tailored to address a compelling state interest. For example, a statute restricting the amount of funds that a candidate for public office may receive in order to reduce public corruption is unconstitutional because it is overly broad and impinges the right to freedom of speech. It affects not only corrupting individual contributions, but also non-corrupting expenditures from their own personal or family resources, as well as other sources that may not exhibit a corrupting influence. Buckley v. Valeo, 424 U.S. 1 (1976)
The courts will also apply strict scrutiny if the law targets a suspect classification, such as race. For example, there is no fundamental right to be an optician (as explained above), but if the state only requires licenses of African Americans (and not opticians of other races), that double standard would receive strict scrutiny, and would likely be ruled unconstitutional.
When the law targets a "quasi-suspect" classification, such as gender, the courts apply intermediate scrutiny, which requires the law to be substantially related to an important government interest. It is more strict than rational basis review but less strict than strict scrutiny.
[edit] Canada
In Canada, a decision of a tribunal, board, commission or other government decision-maker can be reviewed on two standards depending on the circumstances. The two standards applied are "correctness" and "reasonableness." In each case, a court must undertake a "standard of review analysis" to determine the appropriate standard to apply. This approach was described in detail by the Supreme Court of Canada in Dunsmuir v. New Brunswick.
The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error." A palpable error is one that is plainly seen. The reasons for deferring to a trial judge's findings of fact can be grouped into three basic principles. Firstly, given the scarcity of judicial resources, setting limits on the scope of judicial review in turn limits the number, length and cost of appeals. Secondly, the principle of deference promotes the autonomy and integrity of the trial proceedings. Finally, this principle recognizes the expertise of trial judges and their advantageous position to make factual findings, owing to their extensive exposure to the evidence and the benefit of hearing the testimony viva voce.
The same degree of deference must be paid to inferences of fact, since many of the reasons for showing deference to the factual findings of the trial judge apply equally to all factual conclusions. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard.
Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only when the inference‑drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion [1].
