court of record

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.^[1] Judgments of a trial court of record are normally subject to appellate review. In many jurisdictions, 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 tribunals 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 motions, 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 writs 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 lawyers (specifically, attorneys licensed to practice law) can appear on behalf of other persons in a court of record.

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