From our earliest days, we are taught as appellate advocates to only cite to the record. The appellate court is bound by the record. Any "fact" outside the record - save for something for which the court may take judicial notice - does not exist and is entirely irrelevant to its disposition of the matter. By citing to outside facts, you are presenting them as if they are, in fact, part of the actual record, and are thus making an affirmative misrepresentation to the court. In plan English: you are lying.
The consequence for citing to facts outside the record are severe. Repeated and willful references to de hors the record material could lead to sanctions. At a minimum, you could anger the court and prompt it to call you out in writing, as a public display of condemnation. Either way, your previously rock solid reputation for honesty and integrity - a necessary qualification for any advocate - will suffer a huge blow, and the punishment, in whatever its form, will be preserved in the official reports for your grandchildren to read.
Many readers may find this lesson basic, one torn from the pages of Appellate Advocacy for Dummies. And it is. So, you can imagine my shock when I read Justice Catterson's opinion in People v. Barone in which he chastised the People - here, represented by the venerated Appeals Bureau of the New York County District Attorney's Office - for essentially making up facts out of whole cloth.
A sampling of Justice Catterson's missives:
In the People's brief on appeal and at oral argument, the People offered a series of wholly unsupported arguments and significant misrepresentations of the record to sidestep the absence of proof on the criminal enterprise issue
We agree with [the defendant] that it is one thing to draw inferences from the facts and another thing for the People to simply invent facts in an attempt to satisfy the [legal standard].
There is really no excuse for misrepresenting facts to the court. Brief-writing is a labor intensive exercise that requires a great deal of time editing the written product. Hence, the writer or editor should be able to detect an inadvertent factual misrepresentation. But, whether the misrepresentation is negligent or willful is irrelevant, for both deeply tarnish the lawyer's judgment and integrity.