The Danger of Introducing New Factual Claims at the Supreme Court Level

Yesterday, the U.S. Supreme Court heard oral argument in Edwards v. Vannoy, No. 19-5807, on the retroactivity of the unanimous jury requirement of Ramos v. Louisiana. See this post from the day the Court took up the case. I will have much more to say on the law of retroactivity in a later post, but for now I want to call attention to an alarming practice that the Supreme Court should squash — introducing new factual claims at the Supreme Court level with no realistic opportunity for the other side to challenge them.

As to the facts of the specific case before an appellate court, the uniform rule throughout the country, with very few exceptions, is that the court’s review is limited to the trial record. Trial courts are the place to present evidence and decide facts. If at trial a party wants to put on expert testimony, discovery rules generally provide advance notice of the expert’s opinion and the basis for it, and parties have a chance to cross-examine and to put on their own experts. An expert’s affidavit submitted to the appellate court with no prior notice and no cross-examination is beyond the pale and would surely be stricken by the court on objection from the other party.

Appellate courts have been more lax about factual claims separate from the specific case and relating to more general matters. Appellate briefs commonly cite published studies.

In the Edwards case, though, we have something different. Amicus briefs have been submitted containing original research relating to the number of cases that would have to be overturned if Ramos is held to be retroactive on collateral review and the impact of the prior non-unanimity rule on wrongful convictions. These briefs were the subject of considerable discussion during the oral argument.

As a practical matter, studies like this take time. In the course of a Supreme Court briefing schedule, a party confronted with a study for the first time in an amicus brief does not have time to do its own study to refute the numbers presented. On page 51 of the argument transcript, Justice Gorsuch asked the Louisiana Solicitor General if she disputed one of the numbers. She could only answer “we have no basis to dispute it.”

As the Court considers matters of due process and accuracy of trials, it should also consider what process is due in its own operations. A study that is sprung on the court with no meaningful opportunity for challenge should not be accepted as truth. These numbers may very well be wrong. We simply have no way of knowing at this time.