How to Appeal a Criminal Conviction

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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An appeal is the process whereby a defendant can ask a higher court to review their case to make sure that the case was handled properly. In order to appeal a case, a defendant should understand how to preserve the right to appeal, the types of issues that can be resolved through a direct or indirect appeal, and how the process works.

Preserving the Right to Appeal

Before a case can be appealed, a court must enter a final order or conviction, usually in the form of a judgment. This is the document that actually says a defendant is guilty of a specific criminal offense, and is thereby convicted. The events prior to the signing of this document will control the remainder of the appellate (or appeal) process. The first step for any defendant is making sure to preserve the right to appeal. A majority of criminal convictions result from plea bargains. A smaller fraction of convictions result from jury trials. Although the procedure for an appeal from either type of case is similar, how these cases were handled can result in a waiver of right to appeal.

When a defendant decides to accept a plea bargain agreement, he is usually presented with a set of documents to sign. Virtually every state will include basic language where a defendant agrees to waive his right to appeal in exchange for the agreement offered by the state. If a defendant signs this waiver, he will lose the right to a direct appeal. If a defendant wants to accept a plea bargain, but wants to keep his right to appeal, he needs to strike through or edit the language in the plea papers about waiving his rights. A waiver is almost sudden death in a criminal appeal.

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Exceptions to Waiving the Right to Appeal

The exception to the waiver rule is where there was gross misconduct by the state or the defense attorney’s representation was deficient. For example, if a defendant pled guilty, but the prosecution was aware of actual evidence that would exonerate the defendant and did not disclose this information to the defendant, a defendant may have the right to appeal under a Brady violation based on misconduct by the government. A Brady violation occurs when a prosecutor fails to turn over material and favorable evidence to a defendant. Deficient performance by a defense counsel can be difficult to prove, but many cases have recently been overturned because of ineffective assistance by trial counsel.

The main issue has been the failure of a defendant’s attorney to warn them that a criminal conviction could or would result in deportation. The appeal courts decided that a conviction based on incorrect or incomplete advice invalidated the voluntary nature of the plea. Some states will allow a defendant to raise these two types of issues on a direct appeal. Other states only allow these issues to be raised by a post-conviction writ of habeas corpus. The term writ is somewhat intimidating, but it is extremely similar in function, purpose, and procedure to an appeal. The main difference is the timing and labeling of the motion.

Right to Appeal in Jury Trials

If a conviction resulted from a jury trial, a categorical waiver of right to appeal is not usually an issue. Because a defendant did not sign a written document, they still have the right to appeal. However, a defendant may still need to preserve the right to appeal certain issues. A defendant does not need to raise a specific objection when they are challenging the sufficiency of the evidence (i.e. complaining that there just wasn’t enough evidence to convict). However, other issues that do require preservation are the admission of specific pieces of evidence, the admission of certain statements, or the admission of evidence resulted from police misconduct. A defendant must preserve the right to object to a segment of evidence. Although some items are objected to through pre-motions and hearings before trial, most objections occur orally at trial.

For example, if a defendant is charged with domestic violence, the state may want to call the police officer that responded to the call to talk about what the defendant’s wife told him. What the wife told the police officer is classic hearsay. However, if a defendant does not object at trial when the evidence is offered or talked about, the defendant waives the right to complain about the evidence on appeal. The defendant could appeal the conviction and argue that the evidence was not sufficient to justify the conviction (a sufficiency claim), but he can not complain of the specific evidence presented. Essentially, what a defendant can appeal will turn on the objections raised before the conviction.

Types of Appeals

If an objection was made at the trial court level before the judgment of conviction was signed, a defendant can raise the issue associated with objection at trial. The first category of issues is police conduct. For example, a number of criminal offenses begin with a traffic stop by a trooper or police officer. If a trooper did not have a sufficient legal reason for the traffic stop, and no exceptions apply, then any evidence found as a result of the stop should not be admitted at trial. Essentially the argument is that the evidence was obtained illegally and should not have been used against the defendant.

The same type of argument would be used to contest search warrants that were issued based on insufficient information or were substantially defective. A defendant can also challenge illegally-obtained statements. If a defendant confessed during a custodial interview, but the police failed to read the defendant Miranda warnings, this conduct could also be addressed on appeal.

The second category focuses on the events at trial. Every state has its own set of rules of evidence and procedure. If a defendant can show that a rule or procedure was violated and that this breach of rules caused a harmful result, the defendant could obtain a reversal of his conviction. As mentioned, to raise these types of issues on appeal, the defendant must object when the evidence is offered at trial. Objections that fall into this category include objections to hearsay evidence, insufficient chain or custody, or a violation of the right to confront or cross-examine a witness.

The third category addresses legal or factual sufficiency of the evidence. In this complaint a defendant is not complaining that the trial court erred in admitting evidence, but rather, that the evidence presented was not enough to justify his conviction.

The fourth category relates to the discovery process and conduct by the prosecutor. If a prosecutor willfully withholds evidence that would have substantiated an individual’s defense, a defendant could raise a Brady violation or discovery violation on appeal. This appellate issue only applies to evidence that was material to a defensive theory. Usually courts will not overturn convictions when a prosecutor didn’t turn over evidence showing more guilt on the part of a defendant.

The fifth category of appellate issues addresses newly discovered evidence. Sometimes the evidence is not new, but the forensic procedure has changed. A defendant in this case is not attacking the conduct of the prosecution or a trial court’s ruling, but instead is saying that the trial produced a wrong result because on an incomplete presentment of evidence. For example, 30 years ago, DNA testing was just obtaining credibility as a legitimate scientific procedure with the courts. Over the past several years, DNA testing has become globally accepted and the methods of DNA testing have become more sophisticated. If a defendant was convicted 30 years ago based on evidence that was never tested, he could potentially make a motion to have the evidence tested today. If the re-testing proves that a defendant could not have committed the offense, a defendant could pursue an appeal based on this newly discovered evidence.

Some states have one appeal process for all types of appeal. Others break them into one of two types of appeals. The first option is a general appeal process for trial and evidentiary issues list in the first, second, and third categories discussed above. This appeal process is called a direct appeal because a defendant is directly attacking the basis of the judgment or conviction. The fourth and fifth categories usually require an indirect appeal through a writ of habeas corpus because a defendant is not directly attacking what happened at trial or in the courtroom, but rather has an indirect reason for why the conviction should not stand. Even though some states split the appeal process, the basic process is the same for most states.

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How to Appeal a Conviction

Each state has enacted a set of rules to govern how the appeals process works. These rules are usually labeled the rules of appellate procedure or code of appellate procedure. When deciding to file an appeal, a defendant needs to be careful not to confuse criminal procedure (or trial procedure) rules with appellate rules. They are completely different and provide for unique time lines. Once a conviction or judgment is rendered, the first step is to notify the trial court and the appellate court that a defendant wants to appeal their case. This is usually accomplished with a one page document entitled “Notice of Appeal.”

Any notice of direct appeal is generally required to be filed within 30 days of the conviction. Some defendants will include a motion for new trial or re-consideration, but what is critical is language in the body of the motion that specifically states a defendant wants to appeal their case. The website for the appellate court will give general instructions on whether they accept paper filing, electronic filing, or both. After the notice of appeal is filed, the court reporter must prepare a record, or transcript of everything that was said in the courtroom. Many states require a defendant to pay for a copy of the record. If a defendant cannot afford to pay for a copy, he should file an additional motion for a free record based on his inability to pay.

Once the record is prepared, the court reporter sends a copy to the parties and the appellate court. This sets a new set of time limits in motion. After receiving the record, a defendant must file a brief detailing exactly why the conviction should be overturned. The brief must allege there was a violation and what evidence supports the position. If a defendant refuses or fails to file a brief, the appellate court cannot and will not review the issues. After the defendant files the brief, the state will have an opportunity to respond with their brief. After the court receives a brief from both sides, they will set the case for submission. This is where the appellate court will convene to decide what they should do with the case.

Many submissions are based on the written briefs provided by the defendant and the state. However, sometimes the court will want to hear oral argument. This is where the attorneys for the defendant and the state appear before the judges of the appellate court and argue their respective sides. Only arguments are presented. No new evidence is admitted during this process and time limits are set by the court. Appellate arguments are much briefer than a jury trial. Many defendants actually feel slighted when they see how quickly oral arguments end.

Appellate Court Review

After submission, the appellate court will review the record, the argument, and any documents submitted as part of the record. They will then make a decision or render an opinion setting out why they think the conviction should stand or be overturned. If the court affirms the conviction, this means they did not agree with the defendant. A defendant can continue the appeal process to the state’s highest court and continue to the Supreme Court of the United States. If the court reverses the conviction, this means they did agree with the defendant. The case would then be returned to the trial court to redo the case consistent with the instructions and reasons set out in their opinion. The conviction would also be set aside while the case was being re-worked at the trial court level.

For indirect appeals, the process is almost identical, except that the time lines vary. Some states allow an indirect appeal or writ to be filed at any time. Others place limits on when and how many writs can be filed. Before a defendant files a writ, he should try to include a complete set of issues and arguments. When a defendant files repetitious or numerous writs, the court can start striking (dismissing) the appeals or ordering sanctions, which can include the loss of good time credit for defendants in prison.

From the time the notice of appeal is filed, the process for filing an appeal can take a minimum of 6 months up to several years. The more complex the issues, the longer the appeal will last. If a defendant decides to appeal his case to an even higher level, the process can take even longer.

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