Criminal Appeals
No trial is free from error. The important question is whether your trial was so infected by error that it was rendered fundamentally unfair, requiring reversal, modification, and/or remand. In large part, the purpose of a criminal appeal is to identify legal errors that occurred at trial and convince the appellate court to reverse your conviction(s) or sentence based on these errors.
Most appeals take about a year to resolve. The appellate process is initiated by filing a Notice of Appeal, which is usually done by trial counsel after judgment is imposed. The Notice of Appeal alerts the appellate court of your intention to appeal or challenge your conviction and sentence. Once the appellate court receives the record from the trial court, it will issue the parties a briefing schedule. Since the burden is on the appellant, he or she must file the first brief which is called the Appellant’s Opening Brief. Thereafter, the prosecution will file a brief known as an Opposition Brief or Respondent’s Brief. The appellant is then entitled to file a Reply Brief in response. While the Reply Brief is optional, it should be filed as a matter of course in most appeals.
After the case is fully briefed, the appellate court will usually set a schedule for oral argument. In California state court, appellants have a right to oral argument in all criminal appeals. In federal court, the Ninth Circuit Court of Appeals has discretion to grant or deny oral argument. In both instances, there is a three judge panel that presides over the appeal and any resulting oral argument.
After oral argument, the appellate court will issue a written decision with lengthy legal analysis explaining the disposition it has reached in the case. The appellate court can either affirm the conviction(s), reverse the conviction(s), reverse the sentence or remand the case for further proceedings.
Unlike a direct appeal, which exists as a matter of right, review of the appellate court’s decision is discretionary. Therefore, while an appellate decision can be challenged, the appellant must first seek permission from the next highest appellate court. In California’s judicial system, appellants can petition the California Supreme Court for review by filing a Petition for Review. If this is denied, the appellant can ask the United States Supreme Court to review the case in a Petition for Writ of Certiorari. Similarly, in the federal system, the appellant who would like to challenge a Ninth Circuit Court of Appeals’ decision can ask the United States Supreme Court for review by filing a Petition for Writ of Certiorari. If these petitions are granted, an appeal may be filed in the High Court.
The process of appealing a court’s decision is long and complex. Each step in the process has critical elements that must be navigated successfully in order for an appeal to even be considered. At the Legal Appeals Group, our attorneys have experience with every type of appeal in any and all courts of law. Not only can we get your appeal heard, but our expertise gives you the best chance of actually overturning your conviction or sentence.
Call us today for a free, confidential evaluation of your case.
Waiving Appellate Issues At Trial
It is critical to understand that, on direct appeal, an appellate court can only review the record for errors. This means the appellate courts will not consider new evidence on appeal nor any information that is not contained in the four corners of the record. Primarily, the record consists of everything said in open court which is transcribed by the court reporter and made into a transcript after the trial, every motion and/or pleadings filed by counsel for the defense and prosecution, any probation report filed in support of sentencing, and any and all orders issued by the trial court usually summarized in a minute order prepared by the clerk. If you need to prove an error in your case by reference to material outside of the record, you must file a Petition for Writ of Habeas Corpus discussed in more detail under “Areas of Practice” on this website.
With some exception, a legal issue cannot be raised on appeal unless counsel has properly objected to it at trial. This is why we suggest retaining The Legal Appeals Group at the trial level, as a consultant, to ensure that no legal issue is lost due to inadvertence or lack of legal expertise. Simply put, trial attorneys and appellate attorneys are truly different breeds and, unfortunately, it is unrealistic to expect a trial attorney to understand the nuances of appellate law and adequately protect your record for appeal. Not all is lost, however, if and when a trial attorney fails to object to critical legal issues at your trial. An experienced appellate lawyer will be able to recoup the issue by either framing it as an issue that does not require objection or by raising ineffective assistance of counsel to excuse the default. Neither, however, is ideal.
Common Issues Raised On Appeal
While every case presents a unique set of facts and, therefore, a unique set of legal issues, most criminal appellate arguments concern insufficiency of evidence, illegal searches and seizures, coerced confessions, non-Mirandized admissions, the right to present a defense, the improper admission or exclusion of evidence, instructional errors, juror impartiality, the prosecution’s illegal effort to shift the burden of proof to the defense, the retroactive application of a new and higher sentence imposed against the Ex Post Facto Clause, the imposition of a probation condition that illegally restricts freedom, the imposition of a sentence based on facts never proved by the prosecution beyond a reasonable doubt, and/or the cumulative effect of any number of these errors.
In rare instances, the filing of an appeal may present an adverse consequence in your case. That is, if the trial court erred in your favor, the filing of an appeal may only serve as an opportunity to fix the error either increasing your sentence or exposing your to greater criminal liability.
Standard of Prejudice
Unfortunately, identifying an error does not mandate the reversal of a conviction. This is one of the most commonly misunderstood aspects of criminal appellate practice. After The Legal Appeals Group identifies legal errors in your trial, it must meet the appropriate standard of prejudice to secure reversal. There are different standards of prejudice for different types of errors. Some errors are so egregious that by their very nature they require automatic reversal. These errors, such as failure to instruct on every element of the offense (add others) , are reviewed under the “Reversible Per Se” standard of prejudice. Other federal constitutional errors, such as most instructional errors, admission of an involuntary confession (add others), are reviewed under the “Harmless Error” standard of prejudice which will result in reversal unless the prosecution can show the error is harmless beyond a reasonable doubt. This standard is still very favorable to the appellant. Errors which do not implicate the federal constitution and only involve violations of state law are scrutinized under a much more demanding standard of prejudice requiring the appellant to show that absent the error there is a reasonable probability the outcome in the case would have been more favorable to the defense. This does not mean that the appellant must prove his or her innocence. It means, in practical application, that the appellant must prove the likelihood of a hung jury.
Standard of Review
It is easy to confuse the standard of review with the standard of prejudice and both judges and practitioners do it all the time. The standard of review, however, speaks to the deference that an appellate court must give to a trial court. In every criminal appeal, there is a presumption that the judgment in the case is correct. Therefore, the burden is on the appellant to convince the appellate court the trial contained reversible errors.
With respect to factual disputes, the appellate court is required to defer to the trial court’s findings under the “substantial evidence” rule which mandates the appellate court to view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In practical terms, the only way to prevail under this standard of review is to show there was no evidence presented in support of an essential element of the offense.
With respect to issues of pure law or mixed issues of law and fact, the appellate court need not exercise any deference toward the trial court. This is called “De Novo” review and allows the appellate court to exercise independent discretion in reviewing a legal issue. Therefore, where feasible, it is important to frame issues as a mixed issue of law and fact to benefit from this favorable standard of review.
Remedy
In most instances, reversal does not result in freedom. Therefore, when a conviction or sentence is reversed, the appellate court grants the appellant a new trial. This only gets the appellant back to square one: facing the same charges initially brought against him or her by the prosecution. The most common exception to this rule is a sufficiency of evidence claim. If you show that the prosecution failed to prove its cases beyond a reasonable doubt, the prosecution will not get another opportunity to try to convict you. Instead, you will be set free without retrial.
Under California State law, the prosecution cannot expose you to increased liability on retrial because this would, effectually, punish you for winning on appeal.
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