What Happens in an Appeal From a Criminal Conviction

In a criminal case, after conviction and sentencing, a defendant has the opportunity to file an appeal of the conviction and sentence.

If the conviction resulted from a guilty plea, the defendant may have to ask for leave to appeal, meaning making a request for permission to appeal the conviction. If the conviction results from a trial, the defendant has an absolute right to appeal.

What Happens When You Appeal

An appeal is not a retrial of the case, but instead involves a review of the trial record to ensure that the trial court proceedings were conducted in a fair manner. On appeal, the appellate court will normally make any reasonable inferences of fact in favor of the appellee, meaning that if a criminal defendant files an appeal the facts are viewed in the light most favorable to the prosecutor. Most criminal appeals are not successful.

Appeals from State Convictions

In most states, a defendant's first level of appeal is to an intermediate-level appellate court. From there, it is possible to seek leave to appeal to the State Supreme Court. Afterward, it may be possible to seek relief through the federal courts.

Some misdemeanor cases may be heard in courts such as a district or municipal court, from which the first appeal is made to a higher level trial court. A small number of states have no intermediate appellate courts, such that once proceedings are concluded at the trial court level an appeal is made directly to the state Supreme Court.

Appeals from Federal Convictions

If you are convicted following a trial in federal court, your first appeal will be to the federal Court of Appeals, and your case will never be heard before a state court.

A defendant who is unsuccessful with an appeal to the Court of Appeals may seek leave to file an appeal with the U.S. Supreme Court.

Appellate Procedure

After an appeal is filed, a transcript of the trial court proceedings is prepared and filed with the appellate court. Using that transcript, the court record and references to exhibits used at trial to support their claims, the parties to an appeal submit written briefs to an appellate court. When appropriate, exhibits are submitted to the appellate court.

After the defendant and prosecutor have filed their briefs, oral arguments may be scheduled. The oral argument is heard by the appellate court, often a panel of judges, who listen to the attorneys' description of the case and legal issues. Appellate judges may pose questions to the lawyers arguing the appeal. Arguments for an appeal are usually very short in duration and tend to be academic in nature, focusing on legal issues relevant to the appeal.

After the argument, the appellate court will complete its analysis of the legal issues and arguments, applying the governing standards of review. A standard of review defines the burden a party faces in order to obtain relief from a trial court error, and the burden imposed on the appellant may be very difficult to satisfy. In most cases the appellate court will issue a written opinion that summarizes the issues in the case and explains the legal basis for the trial court's decision.

The appellate court may affirm a decision, keeping the conviction in place, reverse the conviction and order a new trial, uphold the conviction but require that the defendant be resentenced, or remand the case to the trial court for additional proceedings with any subsequent relief contingent upon the result of those further proceedings.

Appellate review of a conviction is a bit like watching a videotape of a football game to try to identify errors by the referees. If the referees make a lot of errors in a close game, you may get the feeling that their mistakes changed the outcome of the game. However, even if the referees made a lot of errors, the score may be so lopsided that you conclude that their errors did not affect the outcome. The judges on appeal are looking for errors that may have changed the verdict, and will disregard harmless errors, those errors that they believe did not affect the verdict.

The appellate judges will also disregard what they deem to be mistakes of trial strategy, the choices a defense lawyer makes about how to present the case to the judge or jury. Going back to the football analogy, trial strategy is similar to the how a coach calls plays. When a coach chooses a play that doesn't work out the way he intended the coach's team may lose, but the score stands. Similarly, if a lawyer argues that a different set of trial tactics might have resulted in a different verdict, even if the appellate court believes that may be true the court can be expected to deny relief.

What Types of Error Occur at Trial

Among the types of error you may hear described during an appeal are the following:

  • Fundamental Error - An error that goes to the heart of the case, and that may be considered by the court in the interest of justice even if the appellant fails to properly raise the issue on appeal.

  • Harmful Error - An error that the appellate court concludes had a probable impact on the outcome of the trial.

  • Harmless Error - An error that the appellate court concludes had no material impact on the outcome of a trial. For example, if a defendant confesses to a murder, and the prosecution has his fingerprints on the murder weapon and video surveillance showing the defendant fleeing the scene, the use of inadmissible hearsay testimony from another witness is likely to be found harmless due to the overwhelming evidence of the defendant's guilt.

  • Invited Error - When a party to a case asks the trial court to make a ruling that is actually erroneous, that party cannot later appeal the trial court's decision on the basis that the court made the requested ruling.

  • Reversible Error - An error that causes the appellate court to overturn the lower court's decision is a reversible error.

What Are Your Due Process Rights

On appeal, you may hear the alleged violation of a defendant's rights described as a violation of the defendant's "procedural due process" rights or his "substantive due process" rights.

  • Procedural Due Process - Procedural due process relates to a court's adherence to procedures that are designed to protect a defendant's liberty and property, set forth in the Constitution, including the right to an attorney, the right to appointed counsel if the defendant is indigent, the right to compel witnesses to appear at trial, the right to confront prosecution witnesses at trial, and the right to obtain a transcript of trial proceedings.

  • Substantive Due Process - Substantive due process represents the broad notion that a person shall not be arbitrarily deprived of his life, liberty or property. If a person is deprived of the opportunity to appeal a court decision, or is convicted when the prosecutor fails to produce exculpatory evidence that tends to prove his innocence, the defendant's substantive due process rights may have been violated.

When a defendant's procedural due process rights were respected, even when it appears that the wrong outcome may have been reached, courts tend to be skeptical of claims based upon alleged violations of the defendant's substantive due process rights.

What Happens if You Lose Your Appeal

Although the initial appeal from a conviction is normally by right, subsequent appeals are normally permitted only by leave of the court in which the appeal is to be filed. When a defendant is convicted in state court and the defendant has exhausted all state level appeals, either by being denied leave for subsequent appeals or by having the state's appellate courts make adverse rulings, the defendant may be able to seek relief through the federal court system.

A defendant whose appeal has been declined or denied by a state supreme court may file a petition for certiorari, a fancy way of describing a request for permission to appeal, with the U.S. Supreme Court. In the alternative, the defendant may file a habeas corpus petition with a federal trial court, asking that the court review aspects of the trial court proceeding for error.

An appeal from state court to a federal court must be premised upon federal issues, violations of federal constitutional law. In order to preserve the issues for the federal appeal, the defendant's state court attorneys must properly raise and preserve any federal issues with the state's trial and appellate courts. In rare circumstances a federal court might find that an unpreserved error affects the defendant's fundamental rights and cannot be deemed waived, but in most cases the failure to have previously raised the federal issue will result in the denial of relief.

A defendant seeking relief from the federal courts after a state court conviction is subject to time limits and other restrictions that, if not met, can cause the defendant to lose the right to seek relief even if that defendant has a strong claim for federal relief. A conviction in federal court is appealed directly through the federal Court of Appeals to the U.S. Supreme Court. As with an appeal from a state court, the U.S. Supreme Court will only hear a defendant's case by leave, and very few criminal appeals are heard by the U.S. Supreme Court.

What Happens If You Win Your Appeal

If you win your first appeal, the prosecutor will have the option of appealing to a higher court.

Following a successful appeal a case is normally remanded to the trial court for additional proceedings. The relief ordered may be relatively slight, such as an order by the appellate court that the trial court resentence the defendant after correcting a mistake in its prior application of the state's sentencing guidelines. More significant relief comes in the form of a reversal of the conviction, and an order for a new trial. On rare occasions a trial court may find that the prosecution failed to prove its case, or committed egregious misconduct, and order that the trial court acquit the defendant.

After a defendant wins an appeal that results in an order for a new trial, the prosecutor will often offer the defendant the opportunity to plead guilty to an offense in exchange for a sentence of time served. That may be a good deal for a defendant, who may not want to risk being again convicted if the case is retried, and whose immediate priority may well be getting out of prison. However, sometimes a defendant will insist that he is innocent, and will demand a new trial. Other times, the prosecutor will refuse to plea bargain and take the case to trial, insisting that the defendant belongs in prison.

If an appellate court rules that certain evidence, or a confession, should not have been admitted at trial, and it appears that the defendant cannot be convicted without the use of that evidence, sometimes the prosecutor will decide to dismiss the charges. It is rare that a prosecutor will concede that a defendant is, in fact, innocent -- but if that does happen, a prosecutor will refuse to retry the case.

Appealing a Probation Violation or a Parole Violation

Appeals are possible from findings that a defendant violated probation or parole. Depending upon the state, the defendant may have to pursue an administrative appeal of a parole violation, filing an appeal within the parole system, before becoming eligible to appeal to a trial or appellate court.

An administrative appeal is heard by an officer of the legislative branch of government, called an administrative law judge.

Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.