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12 Cumb. L. Rev. 365 (1981-1982)
Fact Finding by Appellate Courts - An Available and Appropriate Power

handle is hein.journals/cumlr12 and id is 373 raw text is: FACT FINDING BY APPELLATE COURTS- AN AVAILABLE AND APPROPRIATE POWER THE HONORABLE JOHN C. GODBOLD* The popular perception is that appellate courts do not engage in fact finding. Lawyers and judges say that appellate courts lack the power to find facts, as opposed to reviewing determina- tions of fact, or that if they do have the power they should not exercise it, even in nonjury cases before them for review. In truth appellate courts do engage in fact finding. Courts of appeals, at least those in the federal system, are properly capable of making findings of fact in a broad range of cir- cumstances, and in practice they actually do so. A related question is whether an appellate court may properly receive new evidence in connection with a fact-finding role. Again there is likely to be a quick answer-appellate courts are not evidence-taking bodies. But deeper analysis reveals that appellate courts do receive evidence and put it to use. Receipt of evidence and fact finding at the appellate level, however, are fre- quently not done on a principled basis. Indeed the court may well act without identifying what it is doing or giving any explanation for its action. Fifty to seventy-five years ago appellate fact finding was the subject of considerable discussion,' but dialogue died away. This article suggests that the available tool of appellate fact finding has not reached full appropriate use. It will identify ex- amples of fact finding in appeals and will point out that ap- pellate fact finding does not require alteration of judicial in- stitutions but only the principled use of existing, though under- recognized, doctrines. The discussion is primarily directed toward the federal court system and is addressed in federal court terminology. Applicability to state systems may, of course, turn upon state law provisions that are not discussed. * Chief Judge, United States Court of Appeals for the Eleventh Circuit; Circuit Judge, United States Court of Appeals for the Fifth Circuit, 1966-1981 (Chief Judge, 1981); B.S., Auburn University, 1940; J.D., Harvard, 1943; L.L.B., (honoris causa), Samford University, 1981. The author is indebted to his law clerk, Mark A. Hall, J.D., University of Chicago Law School, 1981, and his former law clerk, Douglas C. Herbert, of the District of Columbia Bar, for invaluable assistance. 'See C. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING 67 n.179 (2d ed. 1947); 34 A.B.A. 578, 598-600 (1909).

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