An Indiana appellate lawyer’s guide to new evidence, the Record on Appeal, trial-court proceedings, and common misconceptions about appellate review.
Quick Answer: Can You Use New Evidence in an Indiana Appeal?
Generally, no.
Indiana appellate courts ordinarily decide appeals based on the Record on Appeal created in the trial court. The Record on Appeal consists of the Clerk’s Record and all proceedings before the trial court or administrative agency. Appellate courts review that record to determine whether legal error occurred; they do not typically hear new witnesses, receive new exhibits, or consider evidence that was never presented below.
Key Takeaway: An appeal is not a second chance to present a better case. If evidence was never introduced in the trial court, an appellate court will generally not consider it for the first time on appeal.
Why Can’t You Present New Evidence on Appeal?
Many people understandably assume that an appeal allows them to correct perceived problems that occurred during trial.
For example, a party may discover:
- A new witness
- Additional documents
- Better photographs
- More persuasive financial records
- New information relating to custody or parenting time
However, the appellate system is designed differently.
Indiana appellate courts review whether the trial court correctly applied the law based on the evidence that was before the trial court when it made its decision. The appellate court is not tasked with conducting a new factual investigation.
What Does the Indiana Court of Appeals Review Instead?
Instead of receiving new evidence, appellate judges review the existing Record on Appeal.
That record commonly includes:
- Pleadings
- Motions
- Court orders
- Trial transcripts
- Hearing transcripts
- Admitted exhibits
- Chronological Case Summary entries
The appeal is decided by analyzing what already exists in that record.
What Is the Record on Appeal?
Indiana Appellate Rule 27 provides that the Record on Appeal consists of:
The Clerk’s Record and all proceedings before the trial court or administrative agency, whether or not transcribed or transmitted to the Court on Appeal.
This means appellate courts look backward at what happened in the trial court rather than developing new facts.
For that reason, preserving evidence during trial is often one of the most important aspects of appellate strategy.
Related Reading: What Is the Record on Appeal in Indiana?
Why Appeals Are Different from Trials
A trial court and an appellate court have different functions.
Trial Courts
Trial courts determine:
- What evidence is admitted
- What witnesses testify
- What factual findings are made
- Which party’s evidence is more persuasive
Appellate Courts
Appellate courts typically determine:
- Whether legal error occurred
- Whether procedural rules were followed
- Whether sufficient evidence supports the judgment
- Whether the trial court abused its discretion
- Whether constitutional or statutory issues require correction
Because these roles differ, appellate courts generally do not receive new evidence.
Can You Call New Witnesses During an Appeal?
No.
Indiana appellate courts do not conduct new evidentiary hearings where witnesses appear and testify.
The appellate court reviews testimony that already appears in:
- Trial transcripts
- Hearing transcripts
- Other parts of the appellate record
Witness credibility determinations are generally made by the trial court, not the Court of Appeals.
Can You Submit New Documents on Appeal?
Generally, no.
Examples include:
- Newly discovered bank records
- Additional photographs
- Newly located contracts
- Documents that were available but never introduced at trial
If those materials were not properly introduced below, the appellate court ordinarily will not consider them as part of the appeal.
What If I Find Important Evidence After Trial?
This is where confusion often arises.
People frequently discover evidence after judgment and assume the appeal is the vehicle for presenting it.
Often, it is not.
Instead, other procedural remedies may need to be considered depending on:
- The nature of the evidence
- When it was discovered
- Why it was unavailable earlier
- The procedural status of the case
The appropriate remedy varies substantially depending on the circumstances, which is one reason prompt legal analysis is important.
What About Newly Discovered Evidence?
Newly discovered evidence does not automatically become admissible simply because an appeal has been filed.
Instead, newly discovered evidence is often addressed through trial-court procedures rather than by presenting the evidence directly to the appellate court.
For example, post-judgment motions may become relevant in certain circumstances.
Because these issues are highly procedural, parties should seek guidance immediately when significant new evidence is discovered after trial.
What Happens if Evidence Was Excluded at Trial?
This situation is different.
Suppose a party attempted to introduce evidence but the trial court excluded it.
In that scenario, the appellate court may review:
- The exclusion ruling
- The objection
- The legal basis for exclusion
- The relevant portions of the record
The appellate court is not receiving new evidence.
Instead, it is determining whether the trial court committed legal error when it excluded evidence already addressed during the proceedings.
Can an Appellate Court Consider Facts Outside the Record?
Generally, no.
One of the most important principles of appellate practice is:
Appellate review is ordinarily limited to the record created in the trial court.
This principle appears repeatedly throughout Indiana appellate practice and is one of the most common sources of confusion among litigants.
Family Law Appeals: Can New Custody Information Be Presented?
Family-law litigants frequently ask this question.
Examples include:
- A child’s grades changed after trial
- A parent moved
- A new relationship began
- Parenting-time issues developed after the hearing
- New allegations arose
Although those events may be important, they generally are not simply added to the appellate record.
Instead, those developments may require separate trial-court proceedings depending on the nature of the issue.
The appeal itself ordinarily remains focused on the record that existed when the trial court issued its ruling.
Criminal Appeals: Can New Evidence Be Used?
The same general rule applies.
Criminal appeals typically focus on:
- Trial transcripts
- Evidentiary rulings
- Jury instructions
- Constitutional issues
- Sentencing proceedings
- Other matters contained in the record
Evidence discovered after conviction may implicate different procedural mechanisms rather than direct appellate review.
Why Preserving Evidence at Trial Matters
Because appellate courts generally review only the existing record, trial-court preservation is critical.
Important evidence should be:
- Identified early
- Properly introduced
- Properly admitted when possible
- Preserved through objections and offers of proof where necessary
Many appeals succeed or fail based on what appears in the record long before appellate briefing begins.
Common Mistakes Regarding New Evidence
Mistake #1: Treating the Appeal Like a New Trial
Appeals review legal errors.
They generally do not provide an opportunity to start over with additional evidence.
Mistake #2: Waiting Until Appeal to Gather Important Evidence
The strongest evidence should ordinarily be developed and presented before the trial court enters judgment.
Mistake #3: Believing New Witnesses Can Testify on Appeal
They generally cannot.
The appellate court reviews testimony already contained in the record.
Mistake #4: Ignoring Preservation Issues
Even powerful evidence may provide little benefit if it was never properly introduced or preserved below.
Frequently Asked Questions
Can I submit new evidence during an Indiana appeal?
Generally, no. Indiana appellate courts ordinarily review the Record on Appeal created in the trial court.
Can I present new witnesses?
No. Appellate courts generally do not hear witness testimony.
Can I submit documents that were never introduced at trial?
Generally, no. Appellate review is ordinarily limited to the existing record.
What if I discover important evidence after judgment?
Different procedural remedies may exist depending on the nature of the evidence and the procedural posture of the case. An appeal itself is generally not the mechanism for simply adding new evidence to the record.
Can an appellate court review evidence excluded by the trial judge?
Yes. The appellate court may review whether the exclusion itself constituted legal error if the issue was properly preserved.
Why Early Appellate Review Matters
One of the first things appellate counsel evaluates is the quality of the record.
Early review can help determine:
- Whether issues were preserved
- Whether critical evidence appears in the record
- Whether transcripts are needed
- Whether evidentiary rulings present appellate issues
- Whether procedural alternatives should be considered
In many cases, appellate success depends as much on the record as it does on the legal arguments.
Conclusion
So, can you use new evidence in an Indiana appeal?
In most cases, no. Indiana appellate courts ordinarily review the Record on Appeal created in the trial court and do not receive new witnesses, new exhibits, or additional factual evidence. Appeals focus on whether the trial court committed legal error based on the record that already exists. Understanding that distinction is essential when evaluating appellate options and determining the strongest path forward after an unfavorable ruling.
Related Reading
- How to Appeal a Case in Indiana
- What Is a Notice of Appeal in Indiana?
- What Is the Record on Appeal in Indiana?
- What Orders Can Be Appealed in Indiana?
- What Is the Standard of Review in Indiana Appeals?
- What Is a Motion to Correct Error in Indiana?
If you need legal guidance tailored to your circumstances, the attorneys of Dixon & Moseley, P.C. can help you through the appeal process. This blog post is written by Dixon & Moseley, P.C. advocates. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.