1. Appeal and Postconviction Relief
Chapter 20
Appeal and Postconviction Relief

2. Appeal of Right
The federal Constitution makes no mention of the right to appeal from a criminal conviction, although some might argue that the right to appeal is implicit in the due process clauses of the 5th and 14th Amendments.
Appeal of Right – appeal that a defendant is entitled to take as a matter of law.
Appeals of Right in federal criminal cases are heard by United States Courts of Appeals. State criminal appeals are heard by state supreme courts, by specialized courts that hear only criminal appeals.
Appellant – party who takes an appeal of right.
Appellee – party against whom the appeal is taken.
Petitioner – party who seeks further review
Respondent – other party

3. Appeal of Right
Assignments of Error – written presentation to an appellate court identifying the points the appellant claims constitute errors made by the lower tribunal.

4. Appeal of Right
Most common assignments of error on direct appeal are claims that the trial court erred in rulings in one or more of the following areas:
Pretrial violations of defendant’s rights
Procedural matters, especially trial court rulings admitting or excluding evidence
Irregularities in the impaneling or conduct of jury
Failure to give jury instructions requested by the defendant or giving of instructions objected to by the defendant
Prosecutorial misconduct such as improper remarks or arguments
Sufficiency of the evidence to support a finding of the defendant’s guilt beyond a reasonable doubt
Interpretations of statutes or ordinances
Legality and the reasonableness of sentence imposed
Jury selection, deliberation, and misconduct
Voluntariness of a guilty plea

5. Appeal of Right
To obtain reversal of judgment, the appellant must show that some prejudice resulted from the error and that the outcome of the trial or the sentence imposed would probably have been different in the absence of the error.
Miscarriage of Justice – decision of a court that is consistent with the substantial rights of a party to the case.
Where an error at trial involves provisions of the federal Constitution, the Supreme Court has said that appellate courts must find beyond a reasonable doubt that the error was harmless to affirm the trial court.

6. Appeal of Right
Some jurisdictions permit a defendant to plead nolo contendere and reserve the right to appeal a specific ruling of the trial court.
Nolo Contendere – I will not contest it. Refers to a plea of no contest in a criminal case.

7. Appeal of Right
The U.S. Supreme Court ruled that the federal government had no right to appeal an acquittal.
Federal government can appeal an order of a federal district court:
Dismissing an indictment
Granting a new trial after judgment or verdict
Releasing a defendant before trial or after conviction
Suppressing evidence before the time that the defendant is put in jeopardy

8. Appeal of Right
Bench Trial – trial before a judge or magistrate without a jury.
Trial de Novo – new trial.
In some instances, people convicted at trial de novo may take an appeal to a higher court, but further review of such cases is generally discretionary.

9. Appeal of Right
Appellate courts perform dual functions in the criminal process:
Error Correction – correct errors of a lower tribune.
Lawmaking – one of the principal functions of an appellate court, referred to as law development function.

10. The Appellate Process
In Douglas v. California, the Supreme Court said that states must provide counsel to indigent people convicted of felonies who exercise their statutory right to appeal.
Anders Brief – law brief submitted to an appellate court by publicly appointed defense counsel in which counsel explains that the defendant’s appeal is nonmeritorious and requests release from further representation of the defendant.

11. The Appellate Process
Notice of Appeal – document filed notifying an appellate court of an appeal from a judgment of a lower court.
Must be filed within 30 days after trial court has entered judgment or denied motion for new trial.
Rule of Four – U.S. Supreme Court rule whereby the Court grants certiorari only on the agreement of at least four justices.
Certiorari – writ issued by an appellate court to grant discretionary review of a case decided by a lower court.

12. The Appellate Process
Per Curiam Opinion – opinion rendered by the court as distinct from one attributed to one or more judges.
Opinion of the Court – opinion expressing the views of the majority of judges participating in a judicial decision.
Dissenting Opinion – opinion rendered by judge disagreeing with the decision of a collegial court.
Concurring Opinion – opinion handed down by judge that supports the judgment of the court but often based on different reasoning.
Concurring in the Judgment – opinion by judge agreeing with the judgment of an appellate court without agreeing with the court’s reasoning process.
En Banc Rehearing – rehearing in appellate court in which all or majority of judges participate.

13. Postconviction Relief
Federal Habeas Corpus Review – review of a state criminal trial by a federal district court on a writ of habeas corpus after the defendant has been convicted, incarcerated and has exhausted appellate remedies in the state courts.

14. Nonjudicial Remedies Available to Persons Convicted of Crimes
Clemency – grant of mercy by an executive official commuting a sentence or pardoning a criminal.
Pardon – executive action that mitigates or sets aside punishment for a crime.