Appellate Practice
Spring 2020, Vol. 39 No. 3
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9
June 19, 2020
Mixed Questions of Fact and Law: Deferential
or Plenary Review?
Don't be put off by the formulaic presentation of the clearly
erroneous standard of review of factual findings in the
context of mixed questions of law and fact.
By Katayoun A. Donnelly
“When reviewing a mixed question of law and fact, this court reviews the trial court’s
findings of fact for clear error and its conclusions of law de novo.” This is perhaps one of
the most familiar statements of the scope of appellate review in state and federal appellate
decisions.
At first glance, it appears that one should be able to distinguish fact questions, which
“usually call[] for proof,” from legal questions, which “usually call[] for argument.” Clarence
Morris, Law and Fact, 55 Harv. L. Rev. 1303, 1304 (1942). This understanding suggests a
deferential appellate review of questions of fact and a plenary review of legal
questions. See United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995) (Posner, J.).
On closer examination, though, this formulaic statement of the standard of review is
incomplete. It leaves out a third type of appellate review, law application—applying the
controlling law and norms to the facts—which also requires plenary review. See Henry P.
Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 237–38 (1985) (“[I]t seems
misguided to assume, as many courts apparently do, that all law application judgments can
be dissolved into either law declaration or fact identification. Law application is a
distinctive operation.”). In addition, it makes no mention of the constitutional-fact doctrine,
which requires plenary review of constitutional facts.
These latter two types of appellate review of facts are the focus of this article.
Appellate Review of Facts and Law Application
Courts generally do conduct a deferential review of historical facts. This means that when a
trial court’s findings are based on an evaluation of witnesses’ credibility, appellate courts
defer to the trial court’s findings unless they are clearly erroneous. “By ‘issues of fact’ we
mean to refer to what are termed basic, primary, or historical facts: facts ‘in the sense of a
recital of external events and the credibility of their narrators.’” Townsend v. Sain, 372 U.S.
