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Standards of review

There are several appellate courts -- the 6th Circuit and Ohio's 9th District, among them -- which require you,  for each assignment of error in your brief, to set forth the applicable standard of review the court is to employ.  That was a good idea, it dawned on me in the midst of an oral argument a month ago in the court of appeals here, when one of the judges asked me what the standard of review should be, and after a moment, I replied, "You know, I have no friggin' idea."

Well, I said that on the inside, anyway.

The case was one I discussed on Tuesday, State v. Torres, which involved another go-around on allied offenses.  This was much simpler, though, because we were past the first step of the procedure called for by Rance and its progeny, where the elements of the two offenses are examined in the abstract to see if they align, but not exactly, and that doesn't apply where the legislature's intent is "clear."  This was a rape/kidnapping case, and everybody agrees that rape and kidnapping are allied offenses under the first part of the test, so we proceed to the second:  whether they were committed with a "separate animus."  Torres had raped a barmaid inside the bar, twice, moving her from the main bar area to a poolroom in the back between the acts.  We won't get into a discussion here, because trust me:  the law on this is just overwhelming that this isn't sufficient to show a separate animus.

Which is probably why I didn't give it much thought; using any standard of review would have produced the conclusion that these offenses merged.  What's more, this wasn't a situation where there was any reason for the appellate court to defer to the trial court:  the entire incident had been captured by the bar's surveillance camera, so both courts were working from the exact same information.

Still, when the judge asked me, I gave her the first standard that popped into my mind, which was of course the most favorable for me, de novo review.  No more was mentioned on the subject, and when the decision came down reversing the case last week, there wasn't any discussion of standard of review in the opinion.

So I was somewhat nonplussed when I got the State's Motion to Reconsider in the mail yesterday, contending that the court had erred by failing to apply an abuse of discretion standard in deciding the case.

Now, that's not going anywhere, mainly for the reason I mentioned:  under any standard of review, the case law dispositively shows there wasn't a separate animus.  But that got me thinking:  what should be the standard of review?  And how do we decide which standard to use?

Good luck with trying to figure that out.  The State's brief cites three cases, all of which mention the abuse of discretion standard in passing, but do nothing to justify that.  (And to show the level of scholarship at work here, the main case cites two other cases in support of its position:  one doesn't involve allied offenses at all, and the other is a civil case involving nuisance and trespass.)  And the brief supplies no logical argument for why abuse of discretion should be the standard.

"Standard of review" is basically shorthand for "how much deference are we going to give the trial court's decision?"  That, in turn, should depend upon the roles and functioning of the two types courts.  The trial courts are in a superior position to determine factual questions, because of the inherent advantages of viewing "live" testimony in gauging credibility.  (This actually falls within another standard of review -- whether the judge's findings are "clearly erroneous."  We'll toss that in with "abuse of discretion" because it's based on the same idea.)

Trial courts are also entrusted with innumerable "management" decisions in the course of a trial:  when questioning is becoming repetitive, whether there's sufficient evidence to show that a witness was "excited," and that his statement can accordingly be admitted as an excited utterance, whether in the context of the trial evidence of other acts would be overly prejudicial.  We don't want the trial courts to be looking over their shoulder every time they make an evidentiary ruling, so we're going to give them broad discretion here.  Finally, there are areas, such as sentencing, which have traditionally been viewed as within the discretion of the trial court. 

The purpose of the appellate court, on the other hand, is to ensure that the law is clear so that it can be applied correctly.  Whether a suspect walked away or ran away from the police is a question of fact, and an appellate court should defer to the trial court's decision on that.  But whether walking or running away from the police gives an officer reasonable suspicion to serve as the basis for a stop is a question of law.  Having the answer to that depend upon the predilections of the individual trial judge would make 4th Amendment law infinitely more unpredictable than it already is.

Much the same applies to the second step of allied offense law.  The standards for determining a separate animus have been fairly clearly articulated, especially in comparison to the standards for the comparison-of-the-elements test.  It's one thing if the victim is claiming that the defendant drove her across town and raped her in his apartment, and the defendant is claiming that the victim arrived at his apartment by herself; that's a decision for the trial court to make.  But once it does, then it's up to the appellate court to apply the law and determine whether those facts suffice to show a separate animus.

Anyway, the tip for today is to think about standard of review before you get up in front of three judges and they start asking you questions.

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