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Background on Appeals

An appeal is a direct attack on a conviction filed with another court that has jurisdiction over the case. After a defendant has been convicted of a crime, he may appeal the ruling to a higher court. In the United States, appellate courts do not retry the case; instead they examine the record of the proceedings in the lower court to determine if any errors were made that require a new trial, re-sentencing, or a complete discharge of the defendant. The judges on appeal are looking for errors which may have changed the verdict, and will disregard errors which they believe did not have an effect.

Defendants have a guaranteed right to file an appeal of any criminal conviction, regardless of the circumstances of the case and the trial. A criminal conviction that has not been pardoned, expunged or successfully appealed becomes part of a defendant's permanent criminal record. A criminal record may make it more difficult for a defendant to secure employment and pass background checks.

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.

One advantage of civil law countries is that the defendant may be permitted several trials de novo in which subsequent courts may review both the lower courts finding of facts and the lower courts finding of laws. Procedural safeguards may be heightened and the concept of waiver may not apply.

International Basis for Right to Appeals

The right to appeal is a fundamental right that guarantees each defendant has the opportunity for a second, impartial party to review the findings of fact and law of the trial court. In international law this right is found in International Covenant on Civil and Political Rights, Article 14, Section 5 - "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

United States

As a general rule appeals in the common law system can be divided into appeals of trial decisions (first level of appeals) and appeals of appeal decisions (second level of appeals). At both levels of appeals the court may review the findings of law by the lower courts. However, findings of fact are viewed in a much more deferential light. For instance, in New York the Appellate Courts can review the trial court findings of both fact and law. However, as a practical matter they rarely reverse a lower court's finding of fact. The New York Supreme Court, on the other hand, cannot reverse a lower court's finding of fact. Because of these differences a criminal defense practitioner must be careful in how they characterize lower court error.

Limits on the Right to Appeal

Appellate courts have developed a series of doctrines to manage their cases loads. Following are a few of those doctrines.

  • Final Judgment Rule - In general, criminal appeals can only occur after a court has entered a final judgment on the defendant. Final judgment is typically defined as occuring at sentencing. The final judgment rule is a rule of administration which has both positive and negative impact on a case. Permitting interlocutory appeal would involve the courts in endless appeals and delay justice for all parties. Unfortunately, the ban on interlocutory appeals requires some defendants to go unnecessarily go to trial. Some jurisdictions may have statutory exceptions to the final judgment rule. For instance, under 18 U.S.C. 3154(c) both the defense and the prosecution have the right to appeal pretrial release and detention orders. In some jurisdictions the trial judge herself may waive the final judgement rule by certifying an appeal directly to a supervisory court. If a court order would result in irreparable injury to the defendant, or the court requires clarification of an important issue for which there is no directly applicable precedent, the defense attorney should file for and request a certified interlocutory appeal with the trial judge.
  • Mootness - A court will not review an appeal where the claim is now moot. For example, if a defendant dies pending appeal, the court may refuse to review the case since the issue will now be moot.
  • Concurrent Sentence Doctrine - If a defendant challenges his conviction on one of several counts and he has been sentenced to concurrent terms, reversal of one count will not reduce the underlying sentence. Thus some courts have held that the case is not appealable under this doctrine. This doctrine should be rejected because a defendant has the right to challenge each and every count. The case is not moot because collateral consequences of additional counts may become relevant in a future case.
  • 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. Many courts have rejected formal plea waivers as against public policy and the defense attorney should argue that the waiver is void either 1) because of public policy or 2) because of the facts surrounding the actual plea and waiver.
  • 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.

The Appellate Process

If a defendant has been found guilty of a crime and feels that his criminal trial was not conducted according to the letter of the law, the defendant can appeal his conviction. In order to file an appeal:

  • It is important to know the grounds on which the defendant can file for an appeal. Trials that had fundamental errors in the criminal trial process or court errors that had a substantial negative impact on the outcome of the case are good issues for appeal.
  • In most U.S. states, a judge in an intermediate appellate court conducts the appeal. This judge reviews the court records and comes to a conclusion as to whether the defendant's right to a fair trial or due process was violated.
  • The parties to an appeal submit written "briefs" to the appellate court, along with a copy of the trial court transcript and any exhibits that were used a trial. Oral arguments may be scheduled. Arguments are typically very short in duration, and tend to focus on the legal issues.
  • The defense lawyer should understand the defendant's due process rights. The defendant has the right to both procedural due process and substantive due process. Procedural due process involves the safeguard's to a person's liberty and property, set forth in the Constitution, such as the right to an attorney, the right to appointed counsel, the right to compel witnesses to appear at trial, and the right to obtain a transcript of trial proceedings. Substantive due process involves the broad notion that a person shall not be arbitrarily deprived of his life, liberty, or property. If a defendant is deprived of the opportunity to appeal a court decision, or is convicted when the prosecutor fails to produce evidence which tends to prove that person's innocence, his substantive due process rights have been violated.
  • An appeal can be filed upon the defendant's conviction or upon the defendant's sentencing if defendant wishes to appeal the sentence but not the conviction.

Grounds for Appeal

A defendant may have one or more basis for their appeal in law. Listed below are a few of the most common grounds on which a convicted defendant may appeal a conviction:

  • Weight of the Evidence - In some jurisdictions the intermediary appellate court may be able to review both the lower court's findings of law and the lower court's finding of facts. When a defendant claims the jury's verdict was against the weight of the evidence, they are arguing that no reasonably jury could find the defendant guilty, given the evidence presented at trial. Intermediary courts are obviously hesitant to second guess the lower court findings, especially since they can only look at the appellate record and cannot gauge the demeanor of the witnesses. Strategically, an appeals lawyers may want to include an argument that the verdict was against the weight of the evidence because this may strengthen the defendants argument that other errors were not harmless error.
  • Sufficiency of the Evidence - A defendant may also argue that the evidence presented by the prosecutor failed to prove one or more elements of a crime. Unlike arguments based on "weight of the evidence" this argument does not ask the judge to examine the value of the evidence presented at trial. The question is simply whether the prosecution presented any evidence that would prove all the elements of a crime.
  • Ineffective Assistance of Counsel - A defendant is guaranteed the right to competent legal counsel during all stages of the criminal proceedings. Failure on the part of the defense attorney to represent her client may result in a valid claim for retrial on the basis of a violation of the right to counsel.

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


French civil law permits trial de novo at multiple levels. An initial conviction at the trial level in a correctional court may be appealed to the Court of Appeals (Cour D'appel). [1]


  1. CPP Arts 706-3 to 706-15
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