Difference between revisions of "Appeals"

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* Waiver - The defendant may agree in writing to waive their right to appeal.
 
* Waiver - The defendant may agree in writing to waive their right to appeal.
 
* Presevation - A defendant who disagrees with a judge's ruling should strive to make a timely and specific objection to the ruling in order to preserve the issue for appeal. Failure to do so may be deemed a waiver of the error by the appeals judge. The rationale behind this rule is that a defendant is obligated to cure error as soon as it occurs to increase both the speed and accuracy of case outcomes. Furthermore, a defendant who strategically decides to forgo raising an error at trial should not be able to raise that same error at a later date.
 
* Presevation - A defendant who disagrees with a judge's ruling should strive to make a timely and specific objection to the ruling in order to preserve the issue for appeal. Failure to do so may be deemed a waiver of the error by the appeals judge. The rationale behind this rule is that a defendant is obligated to cure error as soon as it occurs to increase both the speed and accuracy of case outcomes. Furthermore, a defendant who strategically decides to forgo raising an error at trial should not be able to raise that same error at a later date.
* Harmless Error - In those cases where an error is preserved, the court may determine that the error is harmless and would not have affected the outcome of the case. Generally, there are two types of errors: those that are subject to harmless error analysis and those that, once proven, automatically result in reversal or modification of the conviction.
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* Harmless [[Error]] - In those cases where an error is preserved, the court may determine that the error is harmless and would not have affected the outcome of the case. Generally, there are two types of errors: those that are subject to harmless error analysis and those that, once proven, automatically result in reversal or modification of the conviction.
  
  

Revision as of 14:44, 9 April 2010

An appeal is a direct attack on a conviction filed with another court that has jurisdiction over the case.

Depending on the jurisdiction and court, a defendant who has been convicted may have either an automatic right to appeal, or a discretionary right to appeal. For instance, in the United States all criminal defendants have an automatic right to appeal from a conviction at trial. Appeals to State Supreme Courts and the United States Supreme Court are discretionary.

Limits on the Right to Appeal

  • Timeliness - In most jurisdictions a defendant has a specific period of time in which he must file for an appeal. Failure to file in the statutory limit an be deemed a waiver of the right to appeal.
  • Waiver - The defendant may agree in writing to waive their right to appeal.
  • Presevation - A defendant who disagrees with a judge's ruling should strive to make a timely and specific objection to the ruling in order to preserve the issue for appeal. Failure to do so may be deemed a waiver of the error by the appeals judge. The rationale behind this rule is that a defendant is obligated to cure error as soon as it occurs to increase both the speed and accuracy of case outcomes. Furthermore, a defendant who strategically decides to forgo raising an error at trial should not be able to raise that same error at a later date.
  • Harmless Error - In those cases where an error is preserved, the court may determine that the error is harmless and would not have affected the outcome of the case. Generally, there are two types of errors: those that are subject to harmless error analysis and those that, once proven, automatically result in reversal or modification of the conviction.


If the Defendant Loses the Initial Appeal

The first level of appeal is usually to an intermediate level appellate court. If a defendant loses again at the intermediate level, it is possible to appeal to the Supreme Court. Afterwards, it is possible to pursue relief through the National courts or through Habeas Corpus proceedings. In many cases, after the initial appeal, the defendant must request permission before filing an appeal with a new court.


If the Defendant Wins the Appeal

If the defendant wins his appeal, the prosecutor will have the option of appealing to a higher court. Sometimes, after a defendant wins an appeal, the prosecutor will offer the defendant the opportunity to plead guilty to an offence, with a sentence of "time served." This can be a good deal for the defendant, who may not want to risk being again convicted if the case is retried, and whose immediate priority may be getting out of prison. However, sometimes the defendant will insist that he is innocent and will demand a new trial. Other times, the prosecutor will refuse to plea bargain, insisting that the defendant belongs in prison. The court may apply any of the following remedies if the defendant wins the appeal:

  • Remand for a new trial
  • Reversal of conviction
  • Modification of sentence


Collateral Attacks on Appeal

  • Habeas Corpus
  • Judgement Notwithstanding the Verdict