Appellate Procedure - Module 5 of 5
Module
5: Appellate Procedure
The appellate courts have fundamentally different roles
than do trial courts. They serve as
safeguards to ensure that significant judicial errors in the courts below can
be corrected. However, procedural rules limit
when the appellate courts can decide whether a lower court has committed such
errors. Appeals may only be heard at the
right time and must be filed in the proper format with the correct court. Some appeals include oral arguments, while others
may not. While appellate procedural
rules vary from jurisdiction to jurisdiction, there are principals that apply
to nearly all criminal appellate reviews.
The Final Judgment Rule
In most cases, a defendant can only appeal a final judgment, which is a court action
that ends the litigation. In criminal cases, this means that a
defendant cannot appeal until after both the conviction and imposition of
sentence.[1] Allowing a defendant to appeal each disputed step
of the trial process during the trial would cause disorder and delay.[2] The final judgment rule reinforces the
authority and independence of the trial courts.
There are exceptions to the final judgment rule. For example, a nonfinal ruling may be
appealable if the ruling involves an issue collateral to the case itself and is
required for vindication of an important right that would be irretrievably lost
if review had to await final judgment.[3] This is known as the collateral order doctrine. For
example, the right to reasonable bail allows review before the case is
finalized since, by the time the trial is over, the issue of bail is moot, and
the defendant may have spent more time in jail due to imposition of high bail.
Similarly, the constitutional protection against double jeopardy can be invoked
to appeal the holding of a trial before the trial begins, since it is the
second trial itself (and not necessarily just the verdict) that might be
unconstitutional.[4]
The 1951 case of Stack v. Boyle, established the
applicability of the collateral order doctrine to the issue of bail.[5] There, defendants were arrested for
conspiring to violate the Smith Act,[6] a World War II-era law requiring
non-citizens to register with the government based on the assumption that they
were a threat to national security. Bail
was set at $50,000 for each defendant, which would be the equivalent of a half
million dollars in 2019.[7] The defendants requested a reduction of the
bail amounts, which was denied by the trial court. Although the denial of a motion to reduce
bail is not a final judgment, review was granted by the Supreme Court. The Court explained that the matter of bail
is collateral to the case itself, and if a defendant in custody is in fact
entitled to relief, such relief would be effectively denied were he required to
remain in jail pending final judgment before appealing the bail amount. The Court reasoned that bail must be determined
separately for each defendant and that only at a hearing and upon a showing of
good cause, can the imposition of such excessively high bail be lawful. The Supreme Court sent the case back to the
trial court to hold proper hearings on the amount of bail.
In Abney v. United States,[8] the Supreme Court identified
another constitutional issue that is appealable by virtue of the collateral
order doctrine. Abney was charged with conspiracy
and attempt to commit extortion in a single charge. He was convicted at trial and appealed. The appellate court reversed the conviction, ruling
that conspiracy and attempt could not exist in the same charge. The prosecution
then filed a new case against Abney including only the conspiracy charge. Abney sought dismissal of the case on the
basis of double jeopardy, arguing that he had already been tried on the
conspiracy charge. The court refused to
dismiss the case, and appellate review was granted pursuant to the collateral
order doctrine. The Supreme Court
justified review of the nonfinal ruling by explaining that the rights granted
by the Constitution’s double jeopardy clause, which prohibits trying a
defendant twice for the same offense, would be fundamentally undermined if
review of the ruling were postponed until after the retrial, conviction and
sentence.
Still,
the collateral order doctrine remains a narrow exception to the final judgment
rule. Most requests for review of
nonfinal orders are denied. Some states
do authorize review of nonfinal judgments more broadly, though, where the court
finds that hearing the appeal is necessary in the interests of justice.[9] Some jurisdictions even allow appellate
review of nonfinal orders simply upon a determination that the review will
materially advance or clarify the proceedings.[10]
Interlocutory Appeals
Even when not covered by the collateral order doctrine, a
party may also request permission from both the trial court and appellate court
to have a nonfinal, or “interlocutory,” ruling reviewed.[11] If the trial court grants the request for
review, a petition for review must then be filed with the appellate court
within a statutory timeframe. A petition seeking review of an interlocutory
ruling must contain the ruling at issue, facts relevant to the ruling, the
relief being sought, proof that the trial court granted permission to appeal
and reasons why the appellate court should allow review of the nonfinal
judgment.
A common basis for requesting interlocutory appeal in
criminal cases is the pretrial suppression of evidence. Because the suppression of evidence can
significantly weaken a party’s case, an appellate court may review an order
suppressing evidence even though it is not a final judgment. In the Pennsylvania case, Commonwealth v.
Bosurgi,[12]
the prosecution had obtained evidence of a burglary by removing several watches
from Bosurgi’s pockets following a pat-down.
Bosurgi contended that the evidence was obtained in violation of his
constitutional protection against unreasonable search and seizure and that the
prosecution should be precluded from using it at trial. The trial court suppressed the evidence, but
the prosecution appealed, as the watches were the only direct evidence linking
Bosurgi to the burglary.
The
appellate court agreed to hear the appeal, and reversed the trial court,
finding the watches were lawfully obtained and therefore, could be used as
evidence at trial. Bosurgi challenged
the appellate court’s ruling and the Supreme Court of Pennsylvania agreed to
further review the issue. The Court explained
that, when a party in good faith asserts that suppression of evidence will significantly
affect its case, appellate review should be permitted. In other words, when suppression of evidence has
an effect similar to the litigation-ending effect of a final judgment, interlocutory
review of the suppression may be granted.
Filing the Appeal
Even if a right to appeal exists,
failure to follow the rules of appellate procedure can lead to an appeal’s dismissal. An appeal must be filed on time, with the correct
court and in the correct format.
When
to File
Each jurisdiction has its own rules that
dictate appellate filing deadlines. In
federal court, a criminal defendant has fourteen days after the court action being
appealed to file.[13] Criminal defendants in Missouri, Oklahoma and
South Carolina state courts have only ten days.[14] On the other end of the spectrum is
Minnesota, in which defendants have 30 days in misdemeanor cases and up to 90 days
in felony cases to file their appeals.[15] The
timeframes in other jurisdictions lie somewhere between these poles. Some jurisdictions even set different
deadlines for a prosecutorial appeal than they do for a defense appeal.
Some
jurisdictions allow extensions for good cause or excusable neglect. In federal
court, for example, a defendant may file a request for an extension of time for
filing an appeal, either before or after the filing deadline has expired. The court may grant an extension up to 30
days if circumstances beyond the appellant’s control justify an extension. However, missing a deadline due to attorney
carelessness or incompetence does not qualify as good cause or excusable
neglect.[16]
Where
to File
The appellate
court in which an appeal will be heard depends, foremost, upon where the case
originated. Most cases must be appealed
to the court directly above the court where the disputed ruling occurred. Before the appeal can be heard, the appeals
process must be initiated by the filing of a Notice of Appeal with the court that issued the ruling being
appealed. The records are then forwarded to the appellate court. In federal court, if a notice of appeal is
mistakenly filed in the appellate court, the clerk of that court can forward it
to the trial court, and it will still be deemed to have been properly filed on
the date it was filed with the incorrect court.[17]
How
to File
While
jurisdictional rules vary as to what content must be included in a Notice of Appeal,
the federal rules provide a typical example.[18] In federal courts, the Notice of Appeal must
identify the parties to the case, the court in which the appeal is being taken
and the ruling being appealed. Multiple
notices must be generated so that there are sufficient copies for the clerk of the
court and the parties to the case. In
some jurisdictions, the clerk will send the opposing party a copy of the Notice
of Appeal, while in other jurisdictions the appellant must forward a copy to
the opposing party.
Historically,
filing documents with the courts required mailing or personally delivering hard
copies to the clerk of the court. In
recent years, nearly all jurisdictions have begun e-filing.[19] E-filing is
electronically transmitting documents to the clerk for filing. In some jurisdictions in which e-filing is
available it is now mandatory, while in others it remains optional. E-filing can speed up the filing process, as
well as reduce the consumption of paper products by the court system. E-filing is poised to completely replace
paper-filing around the country.
Oral Argument
After filing a Notice of Appeal, an appellant may file a
detailed discussion of the law that supports his argument on appeal, known as a
legal brief. The appellant may also request a date and
time for oral argument before the
appellate court. Oral argument gives the
appellant an opportunity to advance the argument on appeal, as well as to
answer any questions the appellate court might have about the case. Appellate rules in each jurisdiction dictate
when and how a request for oral argument should be filed. However, the request should always include reasons
detailing why the court should allow oral argument in the case.
While
historically appellants were granted thirty minutes for oral argument,[20] increases in caseloads
have led appellate courts to grant fewer and briefer opportunities for oral
argument. In addition, the availability
of appellate oral argument differs significantly from jurisdiction to
jurisdiction.[21] There is no absolute right to oral argument
and an appellate court may deny a request for it if the court believes it can
render a proper decision based solely on the contents of the legal briefs.
If oral argument is granted, there are additional rules
that govern what it may include, and these rules also vary. For example,
in federal court, during oral argument appellants may not simply read
from their briefs.[22] In
some jurisdictions, appellants must provide advance notice if they intend to
use props or exhibits during oral argument.[23] Some jurisdictions even have rules requiring
certain court attire.[24] Therefore, it is important to be familiar
with the court rules in the specific jurisdiction of the appeal.
Following
the appellant’s oral argument, the opposing party has the opportunity to
respond. Sometimes, the appellant is
given an opportunity to speak again, to counter the opposing party’s arguments,
which is known as rebuttal. Once oral arguments conclude, the appellate
court will render a decision on the appeal, usually within weeks or months,
although in rare cases, it may be closer to a year before the court’s decision
is rendered.[25]
Judicial Rulings on Appeals
In
intermediate appellate courts, a panel of three judges is generally assigned to
each appeal, though in complex cases or in cases of exceptional public
importance, a panel of more than three judges may be assigned.[26] For appeals to a jurisdiction’s highest court,
all of the court’s justices hear each appeal.
The highest appellate court at the federal level, the United States
Supreme Court, has nine justices that hear appeals. States, however, vary as to how many justices
sit on their highest appellate courts, ranging from five to nine.[27]
Appellate
court decisions are issued in the form of written judicial opinions, and different
types of appellate rulings can result in multiple different case outcomes. In some cases, an appellate court will change
nothing the lower court has done, in some it will completely change what the
lower court has done, and in others it may instruct the lower court to take
additional action in the case. The three most common rulings that an appellate
court will issue are: affirm, reverse, and remand.
Affirm
When filing
an appeal, the appellant alleges that an error occurred in the lower court that
resulted in a ruling unfavorable to the appellant, and that the error should
result in nullification of the lower court ruling. However, if the appellate court finds there
was no such error in the lower court or that the error was insignificant, the
appellate court will affirm the lower
court’s decision and the appellant loses the appeal. When an appellate court affirms a lower
court’s ruling, the lower court’s ruling remains in effect and nothing is
changed.
Reverse
If, on
the other hand, the appellant has successfully convinced the court that the
lower court’s ruling was in error and
significantly impacted appellant’s case, the court will reverse the lower court ruling.
A reversal means that the court is granting the appellant’s request to
overturn the lower court ruling. A
reversal may or may not end the litigation, depending on the nature of the
appeal. For example, if an appellant challenges
a pre-trial denial of bail and wins the appeal, a reversal simply means the
appellant must be granted bail, but the trial can still proceed. In
contrast, if an appellant appeals a conviction and contends that the law he was
convicted of violating is unconstitutional, a reversal would have the effect of
undoing the conviction, and thereby ending the case.
Remand
In
some cases, an appellate court will decide that the resolution of the contested
issue should properly occur back in the lower court, rather than in the
appellate court. If an appellate court remands a case, it sends the case back
to the lower court for further action.
For example, in Arizona v.
Fulminante, Fulminante was
charged with murder, and the prosecution’s evidence included his confession.[28]
He filed a pretrial motion claiming
that law enforcement coerced the confession, and that the confession should be
excluded from trial. The appellate
courts ultimately agreed with Fulminante and remanded the case back to the trial
court with the mandate that it must grant his request to exclude his confession
before proceeding with the trial.
The appellate court can also affirm in part and reverse in part when multiple questions
are appealed. Often, when cases are affirmed in part and reversed in part, the
court may establish standards under which the lower court should have analyzed
a question. It can then send the case back to the trial court for
re-consideration based on specified standards. In such cases, appellate court
orders may rule something to the effect of, “The judgment of the lower court is
affirmed in part, reversed in part and remanded for proceedings not
inconsistent with this opinion.”
Conclusion
Thank
you for participating in LawShelf’s video-course in Criminal Sentencing and
Appeals. We hope that you now have a
better understanding of the processes that follow criminal convictions and we
hope that you will take advantage of our other courses in the area of criminal
law. Best of luck and please let us know if you have any questions or feedback.
[1] See, Berman
v. United States, 302 U.S. 211, 212 (1937).
[2] See, Cobbledick v. United
States, 309 U.S. 323, 325 (1940).
[3] See,
Cohen v. Benefit Industrial Loan Corp., 337 U.S. 541, 546 (1949).
[4] Aparicio v.
Artuz, 269 F.3d 78 (2d Cir. 2001).
[5] See, Stack v. Boyle, 342 U.S. 1 (1951).
[6] 18 U.S.C. 10 § 2385.
[7] See, CPI Inflation
Calculator, at: www.in2013dollars.com/us/inflation/1950?amount=50000.
[8] See, Abney
v. United States, 431 U.S. 651, 662 (1977).
[9] See, e.g., Utah Code Crim. Proc. § 77–18a–1.
[10] See, e.g., Wis. Stat. § 808.03.
[11] See,
28 U.S.C. §§ 1292(b), 1292(c)(1).
[12] See, Commonwealth v. Bosurgi, 411 Pa. 56
(1963).
[13] See,
U.S.C.S. Fed. Rules App. Proc. R 4(b).
[14] See, Okl. St. Chp. 18, Appx. R. 2.1(b); RULE
203(6) SCACR; Mo. Sup. Ct. R. 30.01(d),
81.04(a).
[15] See, Minn. R. Crim. P 28.02.
[16] See, United States v. Torres, 372 F.3d 1159,
1163 (10th Cir. 2004).
[17] See,
U.S.C.S. Fed. Rules App. Proc. R 4(d).
[18] See,
U.S.C.S. Fed. Rules App. Proc. R 3.
[19] See, e.g., https://www.in.gov/judiciary/4267.htm
[20] See,
U.S.C.S. Fed. Rules App. Proc. R 34(b).
[21] See, e.g., Fla. R. App. P. 9.320; U.S.C.S.
Ct App Fed Cir, FRAP 34.
[22] See,
U.S.C.S. Fed. Rules App. Proc. R
34(c).
[23] See,
D.C. Cir. R. 34(i).
[24] Nev. EDCR 7.72.
[25] See, e.g., Benjamin Schatz, Understanding the 90 Day Rule (2007), https://www.manatt.com/manatt/media/Media/PDF/05-Understanding-the-90-Day-Rule,-30-LA-Lawyer-11,-Dec-2007.pdf; see also, Does it Take Longer to Affirm or Reverse? (2015), https://www.sixthcircuitappellateblog.com/news-and-analysis/does-it-take-longer-to-affirm-or-reverse/
[26] See, U.S.C.S. Fed. Rules App. Proc. R 35(a).
[27] See,
https://ballotpedia.org/Statesupremecourts.
[28] See, Arizona v. Fulminante, 499 U.S. 279 (1991).