An issue that sometimes arises in Alabama appellate court practice is the failure of a party to provide proper citations to the record on appeal. The record on appeal refers to the compilation of the trial transcript, trial exhibits, and the pleadings on record in the clerk’s office. Whenever the writer of an appellate brief makes reference to the facts of the case that are relevant to the legal issue being argued, he or she must provide a citation to the record. This simply means that the brief writer must tell the appellate court what page of the trial transcript they should read to see what happened.
Most of the time, facts from the trial will be referenced with R. followed by the page number. So, for example, a fact that appears on page 437 of the record will be cited as (R. 437). A reference to a pleading that is contained in the clerk’s portion of the record, such as a motion or a court order, will be referenced as C. followed by the page number. In some situations the citation scheme may need to be modified for clarity, but in most cases these are the standard forms that are used.
What if a party makes an argument but provides no citation to the record backing up the claim? When that happens, the consequences can be significant. Rule 28(g) of the Alabama Rules of Appellate Procedure requires citation to the record on appeal in support of factual assertions. An appellate court “is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal.” Brannan & Guy, P.C. v. City of Montgomery, 828 So. 2d 914, 920 (Ala. 2002). In other words, if you don’t tell the appellate court where they can find it in the record, they aren’t going to go look for it.
And what if the facts a person argues are not contained in the record? The appellate courts have said that, “This court is bound by the record and not by allegations or arguments in brief reciting matters not disclosed by the record.” Webb v. State, 565 So.2d 1259, 1260 (Ala. Crim. App. 1990). The appellate courts are not going to be persuaded by your argument if the facts do not actually support it.
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