Appeal Basics

Criminal convictions are often followed by appeals, which are quite different from trials.

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Criminal appeals involve a lengthy and often complicated procedure. Here you’ll find basic information about what goes into an appeal. For more information on the appellate process, see Appealing a Conviction.

First Thing’s First

Getting the names down is the first step in understanding a criminal appeal. When the appellate process starts, the defendant is usually called the “appellant” or “petitioner.” In turn, the government goes by “appellee” or “respondent.”

Fair Game

Appellate courts, like their trial counterparts, won’t consider everything under the sun. When ruling on an appeal from a trial court conviction or sentence, they generally won’t look at new evidence (though there are exceptions, such as when a defendant claims newly discovered evidence is exculpatory). They also generally won’t hear new testimony from witnesses.

Unlike trial courts, which decide issues of fact (for example, what happened), appellate courts are generally confined to deciding issues of law (for example, whether the judge admitted proper evidence in letting the jury determine what happened). Appellate judges consider documents like the trial transcript, trial exhibits, and the parties’ briefs. With these items they decide whether to affirm, overturn, or modify the trial court results.

Let’s Be Brief—or Not

Appellate lawyers present arguments on behalf of their clients through written appellate briefs, which ironically tend to be very long. Briefs typically make reference to:

  • Specific parts of the trial transcript and exhibits. (Appellate judges tend to focus on those parts of the record the parties cite in their briefs.)
  • Statutes and previous court opinions that the lawyers are relying on as authority for the appellate court to uphold or overturn the conviction. A big part of a brief is the argument the lawyer develops from researching how other courts have decided similar legal issues—the lawyer applies the reasoning in those earlier decisions to the circumstances of the present case.

Typically, there are three briefs in an appeal from a criminal case:

  • the appellant (defendant) files an opening brief
  • the respondent (prosecution) files a responding brief, and
  • the appellant files a reply brief.

The appellate lawyers may then have the opportunity to argue the case orally in front of the appeals court. But appellate judges often decide cases without oral argument, and even if they do grant it, they have often all but made up their minds ahead of time.

For more on the procedure by which an appellate court reaches a decision, see Appeals: Timeline and Process.

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