Cold facts freeze out ‘paralanguage’

Prosecution and Procedure

By David J. Robinson

David J. Robinson is a lawyer, adjunct professor, author and 4th District deputy director at the state’s attorneys appellate prosecutor.

Posted January 7, 2016 2:33 PM

On review, the appellate court deals in “cold records” — transcripts and written orders — when rendering it decisions. As a result, one issue that has plagued courts and practitioners has been accounting for such things as sarcasm, hesitation in speech and stress.Of course, the appellate court often reminds practitioners that its review is deferential on issues left to the fact-finder below. Part of what that means is that when presented with a cold record, the court must presume that the fact …

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