In Eberhardt v. Commonwealth, the Virginia Court of Appeals took up a case from Dinwiddie involving child cruelty. The case concluded, unsurprisingly, that the Commonwealth had sufficiently proven the appellant was guilty. From an appellate practice perspective, though, the case is interesting for how it applied the standard of review to the case. The standard of review is what tells the appellate court how deferentially to review the rulings of the trial court.
Deferential review makes reversing a lower court unlikely. It isn’t enough, under a deferential standard, for an appellate court to disagree with how a trial court decided a case. Generally, the disagreement must be so fundamental that reasonable minds could not differ.
De novo, or review without deference to the lower court, by contrast, makes reversing a lower court much more likely. De novo review permits reversal if the appellate court concludes the trial court just got a decision wrong even if the question were a close one, even if reasonable minds could differ on the outcome.
In Eberhardt, Appellant struck his nine year old daughter nine times with the webbed end of a dog leash to “discipline” her after receiving reports that she was talking too much during class at school. The child’s right arm was “significantly bruised” and she had five to eight linear marks and welts on her right arm and on the backs of her legs and buttocks. Appellant was charged with, and convicted of, child cruelty.
For purposes of the appeal, the issue was whether Appellant “willfully or negligently …cause[d a] child to be … beaten.” The word “beaten” is undefined in the child cruelty statute. The question the Court of Appeals had to decide was whether Appellant’s actions amounted to a “beating.”
The Court of Appeals began by noting that defining “beaten” has to be done against the backdrop of at least two well-established legal principles. First, corporal punishment in Virginia is lawful as long as “‘it is not used as a cloak for the exercise of malevolence or the exhibition of uncontrolled passion on the part of the parent.” Second, corporal punishment must not exceed “‘the bounds of moderation and reason'” in punishing a child.
Conventional wisdom is that determining what actually happened – ascertaining the facts -is the province of the fact finder. Assessing whether those facts amount to a violation of the law is a legal determination. Fact determinations are, generally, entitled to deference on appeal. Legal conclusions, generally, are not.
In this case, though, the Court of Appeals, relying on Virginia Supreme Court authority from 1947, held that “‘whether punishment [by a parent of a child] has been moderate or excessive’ is for the fact finder to assess based on ‘the attending circumstances, considering the age, size and conduct of the child, the nature of his misconduct, the nature of the instrument used for punishment, and the kind of marks or wounds inflicted on the body of the child.” That determination is reviewed deferentially on appeal.
Note what happened there when the Court of Appeals ruled that the determination of whether punishment is excessive “is for the fact finder to assess.” The Court of Appeals ruled that it would defer not just to the trial court’s fact findings (i.e., whether the parent struck the child and in what manner) but also to the trial court’s legal determination of whether those facts meet the statutory definition of a beating.
The implication of that ruling is that different fact finders may, permissibly, at different times conclude that identical conduct is, or is not, a beating within the meaning of the child cruelty statute.
That is, again generally speaking, an inversion of the ordinary process. The ordinary process is that factual determinations are reviewed very deferentially by appellate courts. Legal conclusions, however, are usually reviewed de novo, or without considerable deference.
The reason for those different standards of review is that de novo review on appeal permits higher courts to set legal standards and definitions that lower courts look to for guidance. Those legal rulings also shape the contours of what is lawful, or not. By inverting the process, that work of shaping the boundaries of the law devolves to the trial courts whose rulings, at least in this area, are not subject to much scrutiny on appeal. Those trial court rulings will also, typically, not get widespread written publication.
In fairness to the Court of Appeals, it relies for this inversion of the traditional standard of review on extant law from the Supreme Court of Virginia. The Court of Appeals is bound to obey that precedent.
It’s worth closely assessing this standard of review question because that standard is, without question, the single biggest predictor of which party will win on appeal. Appellants who must overcome an abuse of discretion or clear error standard lose their appeals almost every time. By the same token, appellees who must defend their hard-won judgment on a de novo review have a much riskier path in the appellate courts.
Click here for an overview of the standards of appellate review in Virginia.
If you have any questions about this post or other appellate issues, please contact Cullen at (804)783-7235 or CSeltzer@sandsanderson.com .