Court Of Record

In common law jurisdictions, a court of record is a trial court in which a court clerk or a court reporter takes down a record of proceedings. That written record (and all other evidence) is preserved at least long enough for all appeals to be exhausted, or for some further period of time provided by law (for example, in some states, death penalty statutes provide that all evidence must be preserved for an extended period of time). Most courts of record have rules of procedure,  and therefore they require that most parties be represented by counsel lawyers (specifically, attorneys holding a license to practice law) before the specific tribunal. In contrast, in courts not of record, oral proceedings are not recorded, and the judge makes his or her decision based on memory. In most “not of record” proceedings, the parties can and usually do appear personally, without lawyers. For example, most small claims courts, traffic courts, a justice court presided over by a Justice of the Peace, many administrative tribunals that make initial governmental administrative decisions such as government benefit determinations, and the like are not courts of record.

In many states, statutes provide that the power to fine or imprison lies only with courts of record.

“Of record” and “not of record” are two polar extremes of a spectrum, and there is a transition zone between. For example, in proceedings before executive branch agencies of the United States federal government, fully formal proceedings of record are governed by the “formal adjudication” or “on the record” provisions of 5 U.S.C. §§ 554, 556, and 557, while informal proceedings or “not on the record” proceedings are governed by § 555. However, many proceedings have intermediate character, with some “of record” characteristics but not others.

In some classes of cases, after a determination by an inferior or lower tribunal not of record, a party may take a first level appeal to a tribunal that is of record. For example, many government administrative agencies provide a level of intra-agency review before a board of appeals that conducts its proceedings on a more formal basis than the proceedings before the initial hearing officer. In most cases, this first level appeal is “trial de novo” (or a ‘hearing de novo’), in a tribunal of record. This is not an appeal, as such, but a new proceeding which completely supersedes the result of the prior trial. Often, the review tribunal will not permit introduction of new evidence, or may have evidence rules that are quite restrictive. When the first-level adjudication is made by an executive branch agency, and after all intra-agency procedures are exhausted, it is often possible to go to a court to seek judicial review of the judgment of the agency.

The primary function the record is to provide certified copies of the record of proceedings for appellate review. The record from a trial court includes the evidence introduced by the parties, and some form of record of the proceeding itself, which includes copies of all papers filed by the parties, and a transcripts of any trial, and may include an audio or videotape of hearings, appearances, arguments of motions. Exhibits introduced in evidence may also be maintained in the court record, at least for a certain period of time after the case has been tried, after which the evidence may be returned to the parties or destroyed. If either party takes an appeal, the lower court produces a copy with a unique seal to authenticate the formal record.

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