Criminal Appeals and Writs.
The courts are far from perfect. Mistakes happen. In the criminal context, these mistakes can cost you your freedom, both physical and financial. An appeal is your opportunity—your right—to correct these mistakes. It’s a second chance for your case.
It’s important to understand, however, that an appeal is not retrial or an opportunity to present new evidence. An appeal is instead simply a determination as to whether prejudicial error occurred in the trial court. There are many types of errors that can occur, some of which are easy to identify and known in advance of initiating an appeal. Other errors, however, are only discovered during the course of a painstakingly thorough review of every aspect of the trial court proceedings.
After identifying the appealable issues comes the truly difficult part: winning the appeal. There’s no question that succeeding on a criminal appeal is an inherently difficult undertaking. It requires, at a minimum, an in-depth understanding of substantive and procedural aspects of both criminal and appellate law. Decker Law will provide you with the diligent advocacy necessary to give your case a second chance.
Step-by-Step Overview of the Appellate Process
Step One: Notice of Appeal.
An appeal begins with the filing of a notice of appeal. The importance of filing this document before the applicable deadline cannot be overstated: An appellate court cannot consider an untimely appeal—even if the appeal is completely meritorious.
Step Two: Designation of Record.
Shortly after the filing of a notice of appeal, the appellant must designate the “record”—i.e., select the documents from the trial court that are relevant to the appeal. Although this may sound mundane, this is a crucial aspect of any appeal. Failing to designate the record within the appropriate time can result in automatic dismissal of the appeal.
Step Three: Briefing.
Perhaps the most important part of any appeal is the briefing (i.e., the parties’ written legal arguments). There are typically three briefs filed in an appeal:
Opening Brief: The appellant identifies the errors that occurred in the trial court and the legal reasons why reversal is warranted.
Respondent’s (or Appellee’s) Brief: The party opposing the appeal (respondent or appellee, depending on the court) responds to the arguments made in the Opening Brief.
Reply Brief: The appellant responds to the arguments raised in the Respondent’s Brief.
Step Four: Oral Argument.
After briefing has concluded, the appellate court will schedule oral arguments, which consists of attorneys for both sides taking turns presenting their arguments to a panel of judges (referred to as “justices” in the appellate context). Although oral argument is relatively short in duration—it lasts for a maximum of one hour—counsel must spend considerable time in preparation. The advocates must be ready to answer any question from the justices—whether it be about the record (which can be thousands of pages) or the parties’ legal contentions.
Step Five: Decision.
The appellate court issues its decision (i.e., the “opinion” of the court), which typically takes one of the following forms:
Affirmance: The court declares that there was no prejudicial error. The ruling from the lower court stands.
Modification: An appellate court has the power, in certain circumstances, to correct defects and errors with the challenged order or judgment. The appellate court can also remand the case back to the lower court with instructions to correct the defect.
Reversal: Upon a finding of prejudicial error, the appellate court can partially or entirely reverse the trial court order or judgment at issue on appeal.
Step Six: Petition for Rehearing.
Under certain circumstances (e.g., if the decision omits key facts or law), the losing party may consider filing a petition for rehearing, which is a request that the appellate court reconsider its decision. Filing such a petition is an important (and sometimes mandatory) step for a party considering further appellate review (i.e., Supreme Court review).
Step Seven: Remittitur.
After the decision becomes final, the case is sent back to the lower court via a document known as a “remittitur.” This concludes the appeal and, if necessary, resumes proceedings in the lower court.