1. Chapter Seventeen: Appellate Courts

2. Courts of Last Resort Appellate courts oversee the lower courts and are restricted to questions of law; questions of fact are not appealable. Appellate courts hear no new testimony and consider no new evidence. Decisions in intermediate appellate courts are typically made by three-judge rotating panels. But when cases are important, all judges participate (en banc).

3. Question What are “questions of law?” How do disagreements over a point of law originate?

4. Discretionary Review The losing party is not required to seek appellate court review; appeals are discretionary.* If the first appeal is affirmed, any further review is discretionary; the higher court does not have to hear the appeal. * (Except in capital offense cases to which an appeals is mandatory)

5. Principles of Appeal (Criminal) Right to one appeal. No right to bail. Only the losing party can file an appeal. After an acquittal, the prosecutor cannot file an appeal (double jeopardy). Prosecutors can file an appeal through an interlocutory order. Generally, appeals are limited to findings of guilt, not the type or harshness of the sentence.

6. Functions of Courts of Last Resort Error Correction Appellate courts are concerned with individual litigants and the lower court’s interpretation of the law. Policy Formulation Appellate court decisions shape the existing law, extend precedent to new situations, and overrule previous decisions. In other words, their decisions impact both existing and future cases.

7. Steps in the Criminal Appellate Process Appeal: mandatory or discretionary. Notice of Appeal: the appellant (convicted offender) files against the respondent (the state). Appellate Court Record: transcripts, papers, and exhibits. Briefing the Case: briefs or written arguments; both sides file a brief.

8. Steps in the Criminal Appellate Process (cont’d) Oral Argument: both attorneys are allowed to provide an oral argument. Judges also ask attorneys questions. Written Opinion (only appellate court opinions are considered precedent) and the Dissenting Opinion (judges who disagree). Disposition: affirm, modify, reverse, reverse and remand – reversible error or harmless error.

9. Questions Are civil or criminal cases more likely to be appealed? Why? Is expense an obstacle to criminal appeals? What type of criminal defendant is most likely to win on appeal?

10. Post-Conviction Review Collateral attacks filed by prisoners against the prison warden. Although they are filed by prisoners who have been convicted of a criminal offense, these challenges are civil matters.

11. Post-Conviction Remedies May only be filed by those in prison. May raise only constitutional questions. May be broader than appeals, i.e., confront issues not raised during trial, pursue constitutional protections that have developed since the original trial, and contest conditions of confinement. Unlimited in number (state courts).

12. Questions: What is a “writ of habeas corpus?” Should federal habeas corpus actions be broadened to offer more than one federal review (unless the case presents an extraordinary issue)? (1996 Antiterrorism & Effective Death Penalty Act) What about those on death row? (physical evidence and DNA)

13. New Judicial Federalism State constitutions are sources of individual rights over and above the rights granted by the federal constitution. The federal constitution establishes minimum guarantees of individual rights rather than maximum protections.

14. Questions How do state courts perform as “policymakers?” Give an example. In states that do not have intermediate courts of appeals, who has the responsibility for appellate review? What are some areas of law in which state courts have not always complied with federal decisions?

15. Discussion Discuss the differences between the “Warren Court,” the “Burger Court,” and the “Rehnquist Court.”