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The Right to Appeal - Module 4 of 5

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Module 4:  The Right to Appeal

Appellate Review of Convictions

            Defendants convicted of criminal offenses have the right to appeal their convictions or their sentences.[1]  An appeal is a defendant’s request that an unfavorable ruling be reviewed.  The right to appeal is established by statute or constitutional provision, but it does have limits.  Before hearing an appeal, the appellate court must first make several preliminary determinations.  The court must determine whether the contested ruling is one that qualifies for review, and, if it qualifies, the proper legal standard to apply to that review.  

            An appellate court does not consider new evidence.  It only reviews the lower court ruling being appealed, decides whether the ruling involved judicial error and decides whether to overturn the ruling.  To succeed on appeal, a defendant must demonstrate both that the lower court ruling was erroneous and that it affected the outcome of the defendant’s case.

           Judicial error comes in many forms.  One example of trial court error is when a judge allows evidence that should be excluded or excludes certain evidence that should be allowed.  Error may also occur if a trial judge inaccurately explains the law to the jury.   A judge can even commit error after a trial is over by imposing an unlawful sentence.  If a defendant can successfully argue that an error occurred and that it influenced the outcome of the case, the defendant may win on appeal.   

          Different types of errors lead to different standards of appellate review.  A standard of review is the question of the level of deference the appellate court will give to the lower court when reviewing the lower court’s rulings.[2] Depending on what kind of ruling is being appealed, the standard of review can vary. There are three common standards of review utilized by the appellate courts: De Novo Review, Clear Error Review, and Abuse-of-Discretion Review.

De Novo Review

          The most exhaustive type of appellate review is de novo review.  The Latin term de novo means “new” or “renewed.”[3]  When an appellate court applies de novo review, it examines the disputed issue as though it were being decided for the first time, without any deference to the lower court’s ruling.    When an appellate court reviews questions of law, de novo review is used.  One common example would be a lower court’s interpretation of a statute. In Schleining v. Thomas,[4]  Russell Schleining had been sentenced to 21 months in state prison for a burglary, followed by 94 months in federal prison for violating federal firearms laws.  After he was transferred to federal prison, his anticipated release date did not give him credit for time he had served in state prison.

Schleining appealed, arguing that the governing statute should be interpreted to allow his time served in state prison to count also towards his federal sentence. Because the disputed issue was solely an issue of law – specifically, the interpretation of a statute – the appellate court conducted its own analysis of the statute in question, without any deference to the decision being appealed.  This exemplifies de novo review.  While the appellate court ultimately concluded that Schleining’s position was wrong, the court nonetheless conducted its own independent analysis of the governing statute.

            De novo review is also often applied to mixed questions of law and fact.  This applies when the relevant facts are not in dispute, but the inferences and legal consequences of those facts are in dispute.[5]   For example, in the case of Ornelas v. United States,[6]  police asked Ornelas if they could search his vehicle, and he consented.  During the search, officers removed a door panel in the vehicle and found drugs.  The prosecution contended that the loose door panel, in conjunction with knowledge that Ornelas had a prior drug history and drove a vehicle common among drug-smugglers, created ‘probable cause’ that allowed officers to remove the door panel to find the drugs.[7]  


The trial court ruled the search was lawful and Ornelas appealed. The ruling involved both the Fourth Amendment and its application to the facts of his case. The appellate court failed to review the trial court’s ruling de novo, but deferred to the trial court’s decision.  On appeal, the Supreme Court ruled that where the facts leading up to the legal question are not in dispute, the proper standard of appellate review is de novo. The appellate court should have conducted its own independent Fourth Amendment analysis of the vehicle search, rather than deferring to the lower court’s ruling.[8]


“Clear Error” Review

A second standard of appellate review is clear error.  This type of review applies to a lower court’s finding of facts, not its interpretations of law.  Generally, a trial jury is the finder of fact in a criminal trial. In a bench trial, the judge is the finder of fact.  Even in jury trials, judges must make findings of fact in evidentiary issues, such as whether the defendant consented to a police search.

Whether factual findings are made by a jury or judge, clear error review dictates that an appellate court will not overturn those findings unless they constitute clear error, which means error that is obvious. Whereas de novo review does not involve giving deference to the lower court ruling, clear error review does.  The rationale is that the trial court is in the better position to view the evidence and assess witness credibility than is the appellate court, who reviews evidence months later and without the presence of the witnesses. An appellate court may only reverse a finding of fact when it has a “definite and firm conviction” that a clear error has been made in the lower court[9].

In Jackson v. Virginia,[10]  Jackson was convicted of premeditated murder in a bench trial.  He appealed, claiming there was no evidence of premeditation and that the trial judge committed clear error in reaching the verdict.  There were no eyewitnesses to the homicide and Jackson testified that the shooting was accidental.  The trial judge nonetheless found Jackson guilty of premeditated murder. 

The Supreme Court, on appeal, did not consider whether it would have found Jackson guilty.  Rather, its role was to determine if any judge weighing the evidence could reasonably have come to the same decision the trial judge did.  In that case, while there were no eyewitnesses, the prosecution did offer other evidence, such as that the victim was shot twice, six bullet casings were found on scene and the defendant fled the state following the shooting.  Applying clear error review, the Supreme Court concluded that the trial judge’s finding of guilt based on the circumstantial evidence available was reasonable.   

Abuse-of-Discretion Review

A third common standard of appellate review is the abuse-of-discretion standard.  It differs from clear error in that it applies solely to judicial decisions, not to trial verdicts. It applies not to findings of fact, but to judicial reasoning, such as a judge’s reasoning as to whether to grant a motion.  As long as a judge’s decision is based on accurate factual information and guided by sound legal principles, the judge has not abused her discretion.  An appellate court will not disturb such a ruling even if the appellate court reviewing de novo might have ruled differently.  It will only be reversed if no reasonable person would have made the ruling at issue.[11]

In State v George,[12]  Graeme George was a backseat passenger in a car pulled over for speeding.  Officers noticed a marijuana smell and asked the driver and passengers to exit the vehicle.  During the stop, officers observed marijuana in a glass pipe on the floorboard of the backseat and George and the other occupants were charged with marijuana possession. 

At the conclusion of the trial, George’s counsel asked the judge to instruct the jury that if George unknowingly possessed the marijuana, he must be found not guilty.  The judge refused to do so, and George was convicted.  The appellate court ruled that because there had been testimony and evidence supporting George’s claimed defense, the trial judge abused his discretion when he refused to instruct the jury about the defense.  George’s conviction was therefore reversed.

 The outcome in the George case, however, is atypical and most appellate challenges to judicial discretion fail.  Judges have broad discretion to conduct proceedings in their courtrooms as they see fit, and their rulings must merely be reasonable.  In the George case, the appellate court found that the trial judge’s ruling was manifestly unreasonable, and therefore an abuse of judicial discretion.

Preserving Error for Appeal

            Even when it is clear that a trial court committed a legal error, before an appellate court can consider an appellant’s argument, it must first determine that the alleged error was properly preserved in the lower court. Preserving the error means that the lower court was first asked to correct the error when it occurred, but failed to do so.  This typically means an attorney objecting in court to a disputed ruling.  If a judicial ruling is not objected to, it is not ‘preserved,’ and in many instances cannot be appealed.

           To preserve an error for appeal, an attorney’s objection must be timely and must state the legal basis for the objection.  To be timely, the objection must be made as soon as the reason for the objection becomes apparent.  This requirement puts pressure on attorneys to be well-prepared and remain focused during court proceedings.  If an attorney does not object immediately after a disputed ruling occurs, it may be too late to challenge the ruling. 

          The second requirement is to articulate the legal grounds for the objection.  In some cases, the reason for the objection may be clear from its context, and in such cases, nothing more is required than saying “objection.” But when the legal basis for the objection is not obvious, it must be stated on the record to preserve that argument for appeal.  Legal grounds for an objection can be that the court ruling violates a procedural rule, an evidentiary rule or the defendant’s constitutional rights.  If there are multiple available legal arguments to support an objection, the attorney should include them all. On appeal, an attorney may not argue a theory that was not stated on the record at the time of the objection.[13] 

          A complete denial of the right to appeal may seem a rather extreme consequence for failing to properly preserve an error, and many states provide a limited exception to the rule requiring preservation.  If an appellate court is presented with an issue that was not properly preserved, it may nonetheless agree to review the issue if the court finds that the issue involves fundamental error.[14]  Fundamental error exists when a judicial error goes to the very foundation of the case and is of such a magnitude that it cannot be said that the defendant received a fair trial.[15]  The doctrine of fundamental error is only applied by appellate courts in rare cases where the interests of justice so demand.[16]  For example, a criminal conviction following a trial in which the defendant was denied an attorney and forced to represent himself would be a fundamental error.[17]

          In federal court, errors that may be appealed even if not properly preserved are termed plain error, rather than fundamental error.[18]  Federal appellate courts apply the plain error rule only when the error is clear and obvious and affected the defendant’s substantial rights.[19] A judicial ruling is considered to have affected a defendant’s substantial rights if its impact was inherently prejudicial and influenced the outcome of the case.[20]  The Supreme Court has explained that if the error seriously affected the integrity of the judicial proceeding, justice requires that it be corrected on appeal.[21] 

Habeas Corpus and Relief Pending Review

A habeas corpus petition, the right of which is guaranteed by the Constitution itself,[22] is a collateral attack on a conviction or any type of detention.  A habeas corpus isn’t an appeal as much as a lawsuit attacking the government’s right to detain a person. The petition alleges that the custody is unlawful and seeks release of the defendant.  It is generally filed against the chief administrator of the facility where the person is held.[23]   For example, if a defendant is arrested and denied bail, the defendant may file a habeas petition against the administrator of the local jail where he is being held.  Or, if a defendant enters a plea and is sentenced to prison, but claims he only pled guilty due to coercion or misinformation, the defendant can file a habeas corpus petition against the prison warden.  If a court agrees to review the legality of the defendant’s custody, the court will issue a writ of habeas corpus, which commands the facility where the defendant is being held to bring the defendant to court for the review.  If the defendant prevails in proving unlawful detention, he is entitled to release.[24]

          The hearing on a writ of habeas corpus does not require examination of the defendant’s guilt or innocence, but rather examines the legality of the defendant’s detention.  Both federal and state jurisdictions provide habeas corpus processes.  Further, even after a defendant’s petitions at all levels of state court are denied, he may petition for consideration in the federal courts, as habeas corpus is ultimately a fundamental right provided for in the United States Constitution.[25] So, while state court decisions cannot normally be appealed to federal court (except to the Supreme Court), habeas corpus is a way to indirectly force federal district courts to review state criminal proceedings for federal constitutional issues.

           A petition for relief pending review seeks release pending the resolution of a habeas petition or an appeal of a conviction. If a defendant can show likelihood of succeeding, a court may grant relief pending review, which means the defendant will be free during the appeal.[26]   Release pending appeal is not the norm, as in most cases, an incarcerated defendant remains in custody during the appeal.  Relief pending review exists for those rare cases where an appellant’s likelihood of winning is so great that justice requires his freedom pending the appellate court’s decision.  

          Even if an appellate court does grant relief pending review, it may require that the defendant post a bond (similar to bail in the case of pre-trial proceedings) or observe other conditions to prevent flight such as agreeing not to leave the jurisdiction and/or surrender of his passport.

In our last module, we will examine appellate procedure, from the filing of the appeal to oral arguments and the court’s ruling.



[1] See, Peter Marshall, A Comparative Analysis of the Right to Appeal, 22 Duke J. Comp. & Int’l L. 1 (2011).   

[2] See, Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 468, 469 (1988).

[3] Barron’s Law Dictionary (4th ed. 1996).

[4] See, Schleining v. Thomas, 642 F.3d 1242 (9th Cir. 2011).

[5] See, Suzy’s Zoo v. Commissioner,273 F.3d 875, 878 (9thCir. 2001).
[6] See, Ornelas v. United States, 517 U.S. 690 (1996).

[7] U.S.C.S. Const. Amend. 4.     

[8] While not every “mixed question” case has applied de novo review, those that have not represent only a narrow subset of such cases.  See, e.g., United States v. McConney, 728 F.2d 1195, 1204 (1984).  

[9]  United States v. Gypsum Co., 333 U.S. 364, 395 (1948).

[10] See, Jackson v. Virginia, 443 U.S. 307 (1979).

[11] See, State v. Hurst, 5 Wash. App. 146 (1971).

[12] See, State v. George, 146 Wash. App. 906 (2008).

[13] See, United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990).

[14] See, Michael A. Berch, Reflections on the Role of State Courts in the Vindication of State Constitutional Rights, 59 Kan. L. Rev. 833 (2011).   

[15] See, e.g., J.B. v. State, 705 So. 2d 1376 (Fla. 1998); State v. Stokley, 898 P.2d 454 (1995).

[16] See, Smith v. State, 521 So. 2d 106, 108 (Fla. 1988). 

[17] See, Gideon v. Wainwright, 372 U.S. 335 (1963).

[18] See, U.S.C.S. Fed Rules Crim Proc R 52.

[19] See, United States v. Olano, 507 U.S. 725 (1993).

[20] Id.

[21] See, United States v. Atkinson, 297 U.S. 157, 160 (1936).

[22] U.S.C.S. Const. Art. 1, § 2, Cl. 2.

[23] Barron’s Law Dictionary (4th ed. 1996).

[24] See, U.S.C.S. Fed. Rules App. Proc. R 23.

[25] See, U.S.C.S. Const. Art. 1, § 9, Cl. 2. 
[26] See, 18 U.S.C. § 3143.