Court of record
A court of record is a trial court or appellate court in which a record of the proceedings is captured and preserved, for the possibility of appeal. A court clerk or a court reporter takes down a record of oral 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 U.S. 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 (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 notes and memory. In most "not of record" proceedings, the parties may appear personally, without lawyers. For example, most small claims courts, traffic courts, justice courts presided over by Justices 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.
United States of America
In many states, statutes provide that the power to fine or imprison lies only with courts of record. The rationale is that criminal penalties may only be imposed if there is a right of appeal, and appeals are only meaningful if the trial-level court kept a record of its proceedings.
"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. For example, in some agencies of the U.S. Government, oral arguments in intra-agency appeals are transcribed by a reporter as a matter of the agency's choice, but because the record is not required by statute, other guarantees of §§ 554, 556, and 557 do not apply.
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 delegate initial decisions to a single person acting informally (a social security person, a patent examiner, an administrative law judge, a policeman that writes a ticket). Then, the agency provides a first 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'). This intra-agency appeal may be of record or not, or somewhere between, depending on the agency. This is not an appeal, as such, but a new proceeding which completely supersedes the result of the prior agency determination. 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 a certified copy of that record 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 transcript of any trial, and may include an audio or videotape of hearings, appearances, arguments of motions. Exhibits introduced in evidence are 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.
- The Thomas Fletcher, 24 F. 481 (D. Ga. 1884) ("Blackstone says that a court of record is ‘a court where the acts and proceedings are enrolled ... for a perpetual memorial and testimony.");
- In the U.S. some right-wing anti-tax web websites refer to an alternative definition of the term "court of record." This alternative definition is incorrect, and any party that relies on it in litigation may risk sanctions.
- see rules of evidence, rules of civil procedure, and rules of criminal procedure
- For example, in the U.S. patent office, a review by the Patent Trial and Appeal Board of an examiner's rejection is 'de novo' as a matter of the burden of proof, but on a closed record. 37 C.F.R. § 41.37(c)92).
- For example, judicial review of decisions of U.S. federal agencies is provided by 5 U.S.C. §§ 702-706.