How Does a Criminal Appeal Actually Work?

One of the most common questions that comes up is “what’s the process of an appeal?” Appeals are nothing like the dramatic courtroom scenes seen on TV. Instead, they’re heavily based on paperwork. In fact, you aren’t guaranteed an appearance in front of the judge in an appeal. So, how does a criminal appeal actually work?

Step 1: Post-Trial Motions

Following a conviction, either your trial lawyer or your appellate lawyer must raise the legal issues that occurred at the trial stage in a post-trial motion. The most common motion is called a Motion for New Trial, which is one of the pleadings that “preserves” issues for appeal. Preservation of legal issues can be roughly thought of setting up issues for the appeal by making sure that the trial court has a chance to address them on the record. An additional motion can be raised to challenge the sentence, often a Motion to Reconsider Sentence. These motions are infrequently won, and often function as an important step to set up the case for appeal.

To prepare these motions, sometimes the trial attorney will request that the client pay for transcripts of the trial, or portions of it. Obtaining the transcripts assists the attorney handling the post-trial motions in framing the issues and ensuring that they are raised as accurately as possible for the court.

Step 2: The Notice of Appeal

An appeal begins with the filing of a “notice of appeal” within the deadlines set by law. This document does not substantially explain why the conviction should be reversed. It simply tells the court that you are asking a higher court to review what happened in the trial court. Missing this deadline can have serious consequences, so timing matters. It is often beneficial to obtain private counsel before the Notice is filed, where possible. If not, it is important to arrange for representation as soon as possible thereafter. Once the Notice is filed, the person appealing is deemed the “Appellant-Defendant”. The opposing party is called the “Appellee.”

Step 3: The “Record on Appeal” is Requested and Prepared

The appellate court does not hear from witnesses or receive new evidence. Instead, it operates from the most important document in the appeal, the Record on Appeal. The Record generally contains the transcripts (“report of proceedings”), the materials in the court file (“common law record”), and exhibits received by the court at the trial stage. The transcripts must be requested from the Court Reporter or their office, and the remainder is often requested from the Clerk of the trial court. The Clerk and Court Reporters are then given time to prepare the Record. Ensuring that the Record contains the portions needed for the court to evaluate the appeal and is filed on time is the Appellant’s responsibility.

Step 4: Briefing

This is where the bulk of appellate work occurs. An appellate lawyer carefully reviews the entire record, researches the applicable law, and determines which issues have the strongest chance of success. One mistake is assuming that every possible error should be raised. In reality, strong appellate advocacy means focusing on the issues that actually matter. A brief with ten weak arguments is rarely more likely to succeed than a brief with a handful of excellent ones.

After the Appellant files its brief, the Appellee (the State or Government) files its own brief explaining why they believe that the conviction and/or sentence should be affirmed. The Appellant then usually has the opportunity to file a reply brief addressing those arguments.

Step 5: Oral Argument (Sometimes)

Not every appeal gets a court date where the lawyers argue the issues before the judges. When the court grants an argument, the attorneys before a panel of appellate judges to answer questions about the legal issues presented in the briefs. Contrary to belief, this is not an opportunity to give an emotional closing argument about the facts of the case like those made at trial. Oral argument is primarily a chance to answer difficult legal questions and clarify the issues that will decide the appeal.

Step 6: The Court Issues its Decision

After considering the briefs, record, and any oral argument, the appellate court issues a written opinion. The Court may affirm the conviction and/or sentence, reverse the conviction, order a new trial, or remand the case back to the trial court for additional proceedings. Every case is different, and the appropriate remedy depends on the legal error identified.

Important Note: Appeals are NOT Second Trials

The biggest misconception about direct appeals is that they function as a second bite at the apple. Appeals are not that. Instead, they are a first look at the legal issues raised at the trial level. Appeals generally do not involve new witnesses, evidence, or asking the appellate judges to decide which version of the facts that they believe. Instead, appellate courts decide whether legal errors occurred in the trial court and whether any errors affected the outcome. That’s why appellate advocacy is fundamentally different than trial advocacy. Success depends on careful legal analysis, research, strategic issue selection and framing, and persuasive writing.

Great appeals are not about arguing louder. They are about identifying the legal errors that actually give an appellate court a reason to act.