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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.

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.

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.

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