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Appeal Can Appellant present new evidence if there is proof that Appellee's evidence at a hearing covered important information

Moreno Valley, CA |

The Appellee gave the court a document that had a 3M sticky on it that covered important information. So can I show the true document to the appeals court.

The document was a copy with the sticky covering the info on the copy so it looks white with numbers on it.

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Attorney answers 2

Best Answer

In general, you are going to have a difficult time making a given piece of info part of the record on appeal if it is not clear that the trial court considered that info in the first place. Here, if there is any indication from another source that the trial court actually viewed the info under the sticky (for example, if the court made a comment in a hearing or a minute order that referred to that info, or if respondent would stipulate to what was under the sticky), you could probably augment the record on appeal with the "un-stickyfied" version of the document. (See Cal Rules of Court 8.155.) You could also try to augment the record even if there's no evidence that the trial court saw what was under the sticky, but that strikes me as a tough sell. More fundamentally, though, I'm wondering if the "sticky" controversy actually matters to the substance of the issue being appealed. If what was under the sticky was just some random detail, then the fact that it was obscured by a post-it, while aggravating and perhaps dishonest, really doesn't make any difference at this point. It's worth spending energy on it in the appellate context only if the info under the post-it somehow casts the issue that you're appealing in a different light.


What makes you think the trial court did not lift the sticky note to examine the document? Why was the sticky there? Did you object to it on relevance or alteration grounds? if not, why not? I am not admitted in Cal., but I don't think the original papers are going to be before the appellate court (unless it's an original-record appeal from a lower court).

I am not your attorney and any posts/messages or responses to posts/messages can not and do not establish an attorney-client relationship. You should not rely upon free legal advice, and I disclaim any liability for the outcome if you do. Any opinions offered on matters outside New York State are for general informational purposes only.

Terry David Horner

Terry David Horner


Your comment changes your question significantly. If it was the redacted copy that was offered in evidence, and accepted by the court, and you did not object to it on any ground, you are bound by that failure on appeal. The time to make the record the way you want it to be is in the trial court, not on appeal.

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