Supplementing the record on appeal

Our offices are often appointed by the Ninth Circuit on cold record appeals and it is sometime the case that we find crucial documents supporting our arguments that are not part of the record. What to do?

There's always F.R.App.P. 10(e)(2), which permits correction or modification of the record, but that's available only when material is "omitted from or misstated in the record by error or accident." The Sixth Circuit recently issued a decision, summarized on the Appellate Law and Practice Blog, explaining that courts of appeal also have inherent equitable power to augment the record, and that their discretion to do so is informed by several factors, the last of which is particularly relevant for our habeas cases:

The second case cited in this Court's Order as supporting the Court's discretionary power to allow for the record to be supplemented after judgment is entered, Dickerson v. State of Alabama, 667 F.2d 1364, 1367 (11th Cir.), cert denied, 459 U.S. 878 (1982), lists several factors to be considered in deciding whether to exercise that discretion. They are: 1) whether proper resolution of the case was beyond any dispute, 2) whether it would be inefficient to remand to the district court for review of additional facts, 3) whether the opposing party had notice of the existence of the disputed evidence, and 4) whether the case is before the court on a habeas corpus claim, because federal appellate judges have "unique powers" in that context. Dickerson, 667 F.2d at 1367-68.

The case is U.S. v. Murdock, No. 03-1811, available at http://156.125.5.91/opinions.pdf/05a0073p-06.pdf (sorry, I still haven't figured out how to put in a link).