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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.


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.


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.


 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.”


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).