It’s not in the Record Until You Get it into Evidence
September 3, 2019 § 4 Comments
It is elementary that until you get something into evidence it is not part of the record, and it cannot be considered by the court in making a decision.
Judge Westbrooks of the COA specially concurred in the case of Almasri v. Miss. Dept of Revenue, decided August 6, 2019, to remind attorneys and judges of that very point:
¶14. I agree with the majority’s opinion and write separately only to emphasize the importance of following procedures necessary to ensure that pertinent statements and representations are eligible for consideration as evidence and thereby designated as a part of the record.
¶15. The majority opinion notes that during the hearing on the MDOR’s motion to dismiss, counsel for Almasri indicated his client was unable to pay the required bond or assessment under protest. Though officers of the court, lone “statements by attorneys are not evidence.” Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 1092 (¶27) (Miss. Ct. App. 2012) (Court held circuit court erred by allowing expert witness’s baseless testimony; expert’s assertion was partially supported by lone attorney statement indicating plaintiff’s sobriety). As noted, there was no affidavit or sworn testimony supporting the attorney’s representation to the court; the lack thereof precluded Almasri’s alleged inability to pay from evidence in the chancery court, and consequently, the record this court considered on appeal.
¶16. To establish evidentiary value, it is imperative that attorneys take the opportunity to (1) reduce the statement(s) to written form by sworn affidavit or (2) provide sworn testimony to affirm any potentially relevant assertions. In instances where assertions, such as the one Almasri’s attorney made, may impact the outcome of a proceeding or appeal, the statements need to be a part of admitted (or proffered) evidence in the record. Lone statements or arguments of counsel simply are not enough.
To that very apt statement I would add that pleadings and motions are not evidence until they are admitted into evidence by the court. The same goes for exhibits to pleadings and motions. Even affidavits are not in the record until they are admitted into evidence.
I have had attorneys, while questioning a witness, pause and look over at me: “She is referring to Exhibit 2 to the complaint, your honor.” All I can do is inwardly wince.
The Better Chancery Practice Blog 
Regarding the latter comment about pleadings not being evidence/considered until admitted:
If it is a pleading in that cause, I have always asked that the Court take judicial notice of the pleading (as opposed to having it admitted as an exhibit into evidence). I understand and agree with the necessity of admitting any exhibits to pleadings, but the Court is already required to consider the filed pleadings, which can also be made part of an appeal.
What are your thoughts/clarifications?
I stand by what I said. Unsworn pleadings are part of the record, but they are not evidence of anything, so taking judicial notice of them does not accomplish much. As you say, I would not grant a request to take judicial notice of pleading exhibits because they are not authenticated, may contain hearsay, and may be objectionable in many other ways. Pleadings are not evidence; they are only averments and allegations, not proof of what is averred and alleged. They are part of the record on appeal not as evidence, but to frame the issues for review.
We were puzzling the other day over an exhibit excluded but marked for ID. I thought it got in only if specifically designated on appeal, but the few cases I found were all over the place.
I always thought that if it was marked for ID, that sufficed to make it a part of the record on appeal. But I have never researched that. If you find something somewhat definitive, I’d like to know.