whether-appellate-court-reviewing-factual-findings-for-clear-error-must-take-account-of-undisputed-contrary-evidence

QUESTION PRESENTED I. The "Clear Error" standard of review has been criticized as "elastic, capacious, malleable, and above all variable." Edward H. Cooper, Civil Rule 50(A): Rationing and Rationalizing the Resources of Appellate Review, 63 NOTRE DAME L. REV. 645, 645-46 (1988). And this Court "has not provided detailed guidance as to what makes a finding ‘clearly erroneous." Caitlin E. Borgmann, Appellate Review of Social Facts in Constitutional Rights Cases, 101 Cal. L. Rev. 1185, 1199-200 (2013). Given this amorphous gap in the law, there have been recent calls to "dial[] down the deference — even slightly" to law enforcement opinion and speculation testimony. United States v. Drakeford, 992 F.3d 255, 266 (4th Cir. 2021) (Wynn, J., concurring). This case presents an opportunity to do so. The district court here credited an Immigration and Customs Enforcement officer's opinion that Mr. Martinez-Mendoza could not have been voluntarily returned to Mexico in 1997. But the documentary evidence from his immigration file reflected that he had been voluntarily returned, and the officer on cross-examination repudiated the factual bases for the opinions he provided. Still, the Fourth Circuit affirmed under the "clear error" standard of review. This case presents an opportunity to place an objective but deferential limitation on the subjective clear error standard. The question presented is whether an appellate court reviewing factual findings for clear error must take account of undisputed contrary evidence provided by a law enforcement officer's own testimony and the government's own recordkeeping. -i