Criminal Appeals

The Basics of Criminal Appeals

An appeal in a criminal case is a review of a lower court’s judgment. It is not a new trial. Instead, the appealing party, known as the appellant, asks the appellate court to review points of error committed by the presiding judge. The relief the appellant requests depends on the facts of the underlying case. Appellate judges hear arguments and render a written decision on the case.

Who Can Appeal?

The defendant convicted in a criminal case has the right to file a direct appeal. This usually happens after a jury or judge found the accused guilty of a crime. At this point, the person convicted of the crime wants an appellate court to review the case for errors with the hope that the appellate court will overturn the lower court’s decision.

A criminal defendant can appeal any decision that may have been an error. Errors made by the trial court may include:

  • Allowing a conviction based on insufficient evidence to submit the case to the jury;
  • Denying a motion to suppress based on a constitutional violation;
  • Admitting evidence at trial erroneously; or
  • Failing to give correct jury instructions.


Ultimately, the basis of the appeal hinges on what transpired during the trial.

The prosecution may also appeal in certain circumstances. The constitutional prohibition against double jeopardy means the prosecution cannot appeal after it loses a trial. However, the prosecution can appeal judicial rulings made during the case. This procedure is called an “interlocutory appeal.” An interlocutory appeal can proceed only with the permission of the appellate court.

An interlocutory appeal asks an appellate court to stop the proceedings in the lower court to review a decision made by a judge. Usually, the prosecution will file an interlocutory appeal when the judge rules certain evidence is inadmissible at trial due to police error or misconduct.

Criminal defendants can file interlocutory appeals as well. However, many appellate courts will deny the defendant’s interlocutory review and will wait until the case is over to rule on claims of error made while the case is pending.

The Deadline for Filing an Appeal.

Appellate courts are known for having very particular rules that are extremely complicated. To be sure, appellate courts reserve the right to reject appeals that do not strictly conform to their established procedures.

The federal government, as well as each state in the country, has Rules of Appellate Procedure. These rules vary among the jurisdictions. Moreover, laws and rules change all of the time. Therefore, it is essential for everyone who wishes to appeal a case to review the relevant Rules of Appellate Procedure for their jurisdiction and consult a highly experienced and knowledgeable criminal appellate lawyer.

The Rules of Appellate Procedure in your jurisdiction dictate the deadline for filing an appeal. Moreover, the deadline may change depending on which party wants to appeal. For instance, a person convicted of a crime after trial may have 30 days to file an appeal. By contrast, the prosecution might have only 10 days to file an appeal of an adverse ruling rendered by the judge.

Deadlines for filing an appeal are hard-and-fast rules. You could lose your right to appeal if you miss the deadline. Notwithstanding, the courts usually have authority to allow a party to file an appeal in the appropriate circumstances.

How Does an Appeal Start?

The appeal starts when the losing party files a notice of appeal in the trial court. The trial court then notifies the proper appellate court that the losing party filed an appeal. The appeal proceeds in the appellate court from there.

The appellate court does not retry the case. Rather, the appeals judges will review the “record” of the case. Pleadings, transcripts of testimony, exhibits, and the formal judgment comprise the record of the case the appellate court will use to rule on the appeal.

The parties have the burden to present a complete record and frame the issues for the appellate court. They do that by filing “briefs”.

A brief is a formal pleading filed in the appellate court that identifies the claimed errors for review. Depending on the rules of the jurisdiction, the brief should contain:

  • Statement of the case;
  • The procedural history of the case
  • A concise statement of facts;
  • A list of the issues presented for appeal;
  • A legal argument explaining why the appellate court must overturn the lower court’s judgment; and
  • A prayer for relief.


The appellant can ask for a new trial, a finding of not guilty, or any other form of relief relevant to the case.

The brief will also contain a section called an appendix. Each state has rules identifying what should be included in the appendix. Examples of items appearing in an appendix include copies of pleadings, relevant portions of transcripts, and all other items the party wants the appellate court to consider.

The appellate rules will specifically state the maximum length of the brief, along with other specific information and formatting the court requires. The appellate court may reject any brief or other pleading that does not conform to its rules.

The party who prevailed at the lower court is known as the “appellee.” The appellee has a chance to file a brief opposing the relief requested by the appellant. The appellee must file a brief arguing why the lower court’s decision was correct, subject to the same formatting rules applicable to the appellant.

What Happens After You File an Appeal?

Upon entry of the appeal in the appeals court, the parties will receive an order that sets filing deadlines. The scheduling order usually takes into consideration the time needed for a stenographer to prepare transcripts from the lower court.

The appellant files the first brief. The appellee has a chance to rebut the appellant’s arguments. Sometimes, the parties file rebuttal and surrebuttal briefs as well. Next, the court will set a date for oral argument if it does not decide the appeal on the briefs alone.

At oral argument, the lawyers representing each side make their case to a panel of judges. The size of the panel depends on the court where the case is argued. For example, a typical U.S. Court of Appeals panel includes three judges. By contrast, the nine justices sit on the U. S. Supreme Court. The appeals court then takes the case under advisement and renders a decision on a future date.

How Long Do Appeals Take?

The length of the appeal turns on the complexity of the proceedings in the trial court and the issues presented for appeal. Some appeals take several years. However, most appeals are heard and decided within one to two years.

An appeal can take a lot longer if one of the parties continues to pursue further appellate relief. The party who loses the first appeal can ask a higher appellate court for further appellate review.

Whether the highest court will grant further appellate review depends on the issues presented. Higher courts will review a case if they see inconsistent results from the subordinate court or they feel that the law must change in some fashion. Therefore, further appellate review could extend the case by several years.

Special Appeals: Writs of Habeas Corpus and Motions for a New Trial

Federal courts have superintendence power over state courts in very limited circumstances. Habeas Corpus proceedings are one of those circumstances. Habeas corpus is Latin for “you have the body,” and literally commands the superintendent of the prison to bring the petitioner before a judge.

A petition for Writ of Habeas Corpus filed in a federal court asks the federal judge to rule on the legality of the person’s detention. The petitioner must follow the rules scrupulously. If allowed, then the court will set the prisoner free.

A Writ of Habeas Corpus is extraordinary relief and is not granted lightly. However, you should explore that option if you believe you are the victim of an unlawful conviction. As with all criminal matters, you should consult an experienced attorney who can evaluate your case and determine the best strategy for you.

Motions for a new trial are not a direct appeal. Instead, motions for a new trial ask the trial judge, rather than an appellate judge, to order a new trial because justice was not done. The grounds for new trial motions will vary depending on the circumstances of the case. An appellant can pursue a direct appeal and a new trial after a conviction. However, the appellate court might stay, or pause, the direct appeal until the trial judge rules on the motion for a new trial. footer logo 5