Court of record
Encyclopedia
In common law
jurisdictions, a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Judgments of a trial court
of record are normally subject to appellate review. In many jurisdiction
s, all courts are courts of record. In many jurisdictions, courts that have the power to fine or imprison
must be courts of record. In almost all jurisdictions, a court of record will have a court clerk
whose primary duty is to maintain the permanent records. Traditionally, a court of record was required to have its own unique seal
, which was used to authenticate its judgments and copies of its records.
A court not of record is an inferior tribunal, such as a justice court presided over by a Justice of the Peace
, that does not keep systematic records and is often not regarded as having an identity distinct from that of its presiding magistrate
. This is also the case of many administrative tribunal
s that make or review governmental administrative decisions such as government benefit determinations.
As data storage has been made easier over time with the use of duplicating machines, electronic media and computers, some courts which are not courts of record nonetheless do maintain permanent records of their proceedings. However, the distinction between the two types of courts remains important in many jurisdictions, particularly with respect to the method of securing review of judgments by appeal, motion for new trial and the like. In many cases, court records are available over the Internet.
A trial court
of record creates the record of the case for appellate review. This may include the transcript, audio or videotape of any and all hearings, appearances, arguments of motion
s, and the trial
transcript. The trial is held before a trier of fact
and a trier of law based upon the rules of evidence
following civil
or criminal procedure
, usually the jury
is the trier of fact and the judge
trier of law, but in some cases the judge may be both trier of fact and trier of law, depending on the jurisdiction and the type of case. (See jury
.) 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.
On the other hand, a party to a proceeding in a court not of record has in most cases a right to demand a new trial
, called a "trial de novo
" (or a 'hearing de novo), in a court of record. This is not an appeal, as such, but a new proceeding which completely supersedes the result of the prior trial. In other jurisdictions the right of trial de novo has been limited or taken away so to consolidate the power of these inferior bodies, but it is often possible to seek judicial review
of the judgment of an inferior tribunal through the prerogative writ
s or through other concepts such as the patently unreasonable
standard as applied in Canadian
administrative review.
In the United States, a key difference between the two court types is that only lawyer
s (specifically, attorneys
licensed to practice law
) can appear on behalf of other persons in a court of record.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Judgments of a trial court
Trial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
of record are normally subject to appellate review. In many jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, all courts are courts of record. In many jurisdictions, courts that have the power to fine or imprison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
must be courts of record. In almost all jurisdictions, a court of record will have a court clerk
Court clerk
A court clerk is an officer of the court whose responsibilities include maintaining the records of a court. Another duty is to administer oaths to witnesses, jurors, and grand jurors...
whose primary duty is to maintain the permanent records. Traditionally, a court of record was required to have its own unique seal
Seal (device)
A seal can be a figure impressed in wax, clay, or some other medium, or embossed on paper, with the purpose of authenticating a document ; but the term can also mean the device for making such impressions, being essentially a mould with the mirror image of the design carved in sunken- relief or...
, which was used to authenticate its judgments and copies of its records.
A court not of record is an inferior tribunal, such as a justice court presided over by a Justice of the Peace
Justice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...
, that does not keep systematic records and is often not regarded as having an identity distinct from that of its presiding magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
. This is also the case of many administrative tribunal
Administrative court
Greece, as a civil law country has administrative courts. The establishment of those courts can be found in article 94 of the Constitution of the Hellenic Republic 1975, as revised in 2001. The administrative courts are composed from districts Courts of First Instance, district Courts of Appeal and...
s that make or review governmental administrative decisions such as government benefit determinations.
As data storage has been made easier over time with the use of duplicating machines, electronic media and computers, some courts which are not courts of record nonetheless do maintain permanent records of their proceedings. However, the distinction between the two types of courts remains important in many jurisdictions, particularly with respect to the method of securing review of judgments by appeal, motion for new trial and the like. In many cases, court records are available over the Internet.
A trial court
Trial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
of record creates the record of the case for appellate review. This may include the transcript, audio or videotape of any and all hearings, appearances, arguments of motion
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
s, and the trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
transcript. The trial is held before a trier of fact
Trier of fact
A trier of fact is a person, or group of persons, who determines facts in a legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether something existed or some event occurred.-Juries:...
and a trier of law based upon the rules of evidence
Rules of evidence
Rules of evidence govern whether, when, how, and for what purpose, proof of a legal case may be placed before a trier of fact for consideration....
following civil
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
or criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
, usually the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
is the trier of fact and the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
trier of law, but in some cases the judge may be both trier of fact and trier of law, depending on the jurisdiction and the type of case. (See jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
.) Exhibits introduced in evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that 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.
On the other hand, a party to a proceeding in a court not of record has in most cases a right to demand a new trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
, called a "trial de novo
Trial de novo
In law, the expression trial de novo means a "new trial" by a different tribunal...
" (or a 'hearing de novo), in a court of record. This is not an appeal, as such, but a new proceeding which completely supersedes the result of the prior trial. In other jurisdictions the right of trial de novo has been limited or taken away so to consolidate the power of these inferior bodies, but it is often possible to seek judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the judgment of an inferior tribunal through the prerogative writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s or through other concepts such as the patently unreasonable
Patently unreasonable
In Canadian law, patently unreasonable or the patent unreasonableness test was a standard of review used by a court when performing judicial review of administrative decisions. It was the highest of three standards of review: correctness, unreasonableness, and patent unreasonableness...
standard as applied in Canadian
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
administrative review.
In the United States, a key difference between the two court types is that only lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s (specifically, attorneys
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
licensed to practice law
Practice of law
In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister,...
) can appear on behalf of other persons in a court of record.