Criminal Appeals Process

Criminal Appeals Process

A trial judge makes a number of decisions throughout the life of a criminal case.  They range from whether to grant to continuance, to whether to sustain or overrule an objection, to whether the defendant should be acquitted.  Some of these decisions must be made without the benefit of reflection or research.  Fortunately, all of the trial judge’s decisions are subject to review by appellate judges.  Of course, the jury’s ultimate decision as to guilt or innocence is also subject to review by an appellate court.  If any of the trial judge’s decisions are incorrect, or if the jury’s decision is not supported by sufficient evidence, the defendant may be entitled to a new trial.

Appeals vs. Trials

Appeals are very different from trials.  On appeal the primary focus is usually not on the facts of the case, but on the trial judge’s decisions.  This different focus requires different litigation skills.  The skills required to handle a trial are quite different from the skills required to handle an appeal.

An appeal is not an opportunity to present additional evidence.  In fact, no additional evidence will be allowed.  Also, most appeals do not directly challenge the jury’s decision as to guilt or innocence. Such appeals rarely succeed because appellate courts are required to presume that the jury’s decision was correct.  Most appeals challenge the jury’s decision, indirectly.  Instead of challenging the Jury’s decision, they challenge the trial judge’s decisions.  Usually, the contention on appeal is that the trial judge made an incorrect decision, and that that incorrect decision led to an incorrect decision by the jury.

To Appeal or Not to Appeal

In order to determine whether the trial judge made any mistakes that warrant a new trial or some other relief, it is necessary to thoroughly review of each of the trial judge’s decisions.  It is unlikely that the attorney who handled the trial will remember all of the decisions that the trial judge made throughout the life of the case.  So, a thorough review requires not only a review of the trial court’s file, but also a review of the transcripts of all of the hearings that have been held, and a careful review of the law.  This thorough review should be done whether the appeal will be handled by the trial attorney, or by an appellate attorney.

The deadline for filing the notice of appeal is typically 30 days, if the appeal is from a final judgment.  Usually, this is not enough time for a thorough review of the trial judge’s decisions because it usually takes more than 30 days to obtain the transcripts.  So sometimes it may be necessary to file a notice of appeal before a review of the trial judge’s decisions is complete.  The notice of appeal may be filed by the trial attorney even if an appellate attorney will be hired for the appeal.  If after a careful review the appellate attorney decides that an appeal is not warranted, the appeal may be dismissed voluntarily.

The Notice of Appeal

Typically, the notice of appeal must be filed in the trial court.  The trial court then forwards the notice to the appellate court where the case will be assigned to three judges who specialize in appeals.  After the notice of appeal is filed, the prosecutor usually forwards the case to another government attorney who specializes in appeals.

The Appellate Briefs

If the private appellate attorney determines that an appeal is warranted, he or she must explain why in an initial brief.  The government’s attorney will then have an opportunity to explain why an appeal is not warranted in an answer brief.  The private appellate attorney will then have an opportunity to file a reply brief.  Usually, after the reply brief is filed, no other briefs are allowed.

After all of the briefs have been filed, the appellate judges will decide whether or not they will give the attorneys an opportunity to present their arguments orally.  This usually depends on the complexity of the legal issues, and on whether the judges have any questions about the attorneys’ arguments.  But in most cases, the judges will make their decision without oral arguments.

The Appellate Court’s Decision

The appellate judges will usually explain their decision in a written “opinion.”  In some cases, the party that loses the appeal may appeal again to yet another appellate court.  If there is no further appeal, the case will be returned to the trial judge who handled the initial trial.  The government’s appellate attorney will also return the case to the prosecutor who handled the initial trial.  If the appellate court determined that the defendant is entitled to a new trial, the prosecutor may try the defendant again, or dismiss the case.

CPLS’ Appellate Attorneys

CPLS has experienced appellate attorneys.  They handle most types of appeals. If you are in need of an appellate attorney anywhere in the United States, please feel free to contact us.  You may reach us at (407) 647-7887 or toll free 877-647-7887.  We would be happy to assist you.