Appeals Process Overview
By Rob Reynolds
The goal of this page is to lay out the basic guidelines for the appeals process in the United States. The appeals process varies not only between the federal and state courts but within the states themselves as well, being as under our system each state can determine its own rules and procedures for the courts–within certain basic parameters. For example, Kentucky did not have a dedicated court of appeals and a (state) Supreme Court until 1976, previously the ‘Court of Appeals’ was the highest court in the State of Kentucky, with the creation of an intermediate Court of Appeals that court became the Kentucky Supreme Court. Vermont and other states to this day do not have a dedicated appellate court, the state Supreme Court fulfilling that function.
Thus in order to provide an overview, I will start with elements common to the vast majority of appellate courts in the United States. It is actually a relatively simple concept, the devil is in the details and how they apply to so many different courts and jurisdictions throughout the United States, some states like Illinois having different procedural rules from one (state) appeals court to another. Basically once a verdict is delivered the defendant (but not the prosecution) may appeal the verdict, a common requirement is they file an appeal within thirty days, though that varies between states. The prosecution may appeal the sentence, and during the trial (‘interlocutory’) may appeal decisions made, such as whether a certain piece of evidence should be suppressed, but may not appeal the verdict due to the ‘Double Jeopardy’ clause of the Fifth Amendment to the Constitution.
The appellant, who is the one appealing, then writes a ‘brief’ which is their argument for why the original trial was in error and thus should be overturned. What’s important here is that the appeals court will not be looking at new evidence or reinterpreting ‘facts’ determined in the original trial, but will be looking for ‘harmful’ errors made by the court. It is not just enough to find a legal error, it must also be determined that it was ‘harmful’ and thus imperiled the rightness of the original verdict. Also, it must not already have been ‘corrected,’ everyone has probably seen on TV or in the movies where a lawyer ‘objects!’ and the Judge rules that it was ‘sustained.’ That would be correcting that error, thus it would no longer be grounds for an appeal, the damage done would be considered ‘rectified’ by the court. Thus lawyers will attempt to ‘preserve’ those errors by ensuring that they get an ‘adverse’ ruling (eventually) by the judge, up to and including a motion for mistrial. In that brief must be the appellate counsel’s best argument for why there were legal errors in the original trial that weren’t rectified and why they were harmful, backed up with argument and evidence that theirs is the proper legal argument and should prevail. Also, being as appellate courts may have to resolve numerous appeals and are often backlogged, they will often insist that the briefs be meticulously standardized, presumably for easier perusal. For example, the Oregon process insists not only on what color the cover page must be but also how many spaces for each indent and other details of that nature.
If the brief is convincing, then the appeals court may be willing to listen to an ‘oral argument’ regarding the appeal. This differs from state to state, but it’s often going to be a panel of perhaps three judges. They’re not likely to overturn or remand a case without hearing it, thus at this point, the appeals lawyer is going to get about twenty or thirty minutes to make their case and answer questions from the panel. Depending on the court, this can be an intense process, as during a very short period of time the appeals court is going to determine whether the appellate lawyer’s highlighting of errors and their significance justifies a reversal of the original verdict or quashing it and sending the accused back for another trial. They are not likely to reverse a fellow judge without just cause, thus the importance of writing a correct and commanding brief and then backing it up with an oral presentation, including answering questions before them.
If this fails, and the verdict is affirmed (which is most often the case) then the defendant has other options, such as appealing to a higher court, and possibly up to the Supreme Court of the United States; an iffy proposition as the latter court takes in only cases it wishes to hear, and usually only because there’s a compelling legal quandary to be resolved. Most states will have a court of appeals and then a Supreme Court, and after that, there are other options for post-conviction relief such as a state habeas corpus writ, which basically challenges the state’s right to hold the defendant prisoner, and can allow for objections that the appeals court wouldn’t consider during the ‘direct appeal’ procedure explained above. It’s become common parlance to sneer at ‘getting off on a technicality,’ however that is quite probably the result of ‘technicalities’ being basically the only thing on the agenda during the ‘direct appeals’ process. It is said that an appeals court could strike down a verdict for being ‘Manifestly Unjust’ –meaning not true to the evidence–but that seems to have become an archaic term.
There’s also a Federal writ of habeas corpus that allows the prisoner of a state (convicted by state courts) who has exhausted all other options to apply for relief to the federal courts. This allows someone convicted in state courts to challenge that the state doesn’t have the right to hold them as their constitutional rights were violated. Federal prisoners can appeal to federal courts under broader guidelines employing this method, however, it also grants state prisoners an extra level of appeal if they can convince a federal court their constitutional rights were violated. As both the Fifth and Fourteen Amendments mention the guarantee of ‘due process,’ that can be more widely defined than what an appeals court would consider, as for them ‘if it’s not on the page, it’s not on the stage.’ Meaning any errors must be apparent in the court record and transcripts, whereas ‘due process’ can allow for factors such as whether the case was actually proved beyond a reasonable doubt or the process of arrest and imprisonment that might not have made it into the court transcript. This is often the appeal of last resort for death penalty cases, although oddly enough it can be employed in custody cases as well.
I was surprised to find that there were more successful appeals than I had imagined might be the case before I started my research, although during the past decade the confounding factor of the Booker vs. The United States fallout must be removed as it artificially inflated appeals success rates due to sentences being adjusted to conform with the application of the Supreme Court decision. As that decision generally just applies to sentences and the ‘guidelines’ that had been established, removing that from the data still leaves only 80% of appeals to federal courts resulting in an affirmation for the prosecution, and data suggesting that roughly 70-80% of state court appeals are also affirmed. That information on page 6 indicates it’s derived from federal appeals courts from 1995-2007, (though 2005 & 2006 are likely Booker-inspired) and a survey of five state appeals courts from the late eighties. That figure may be higher than the writers of that Marquette paper might have expected, but it’s lower than I had gotten the impression it was from a superficial exposure to the subject.
Writ of habeas corpus statistics were less surprising. It must be remembered that this is a last resort for some that have been convicted and that it became more popular in the Sixties especially for prisoners to file numerous claims that were essentially groundless, even incomprehensible as one can see by perusing pages 40-42 of this paper. Going to page 62 (of the paper, not the PDF number) one can see just how less successful they were than direct appeals, especially with the Federal Courts where almost all the categories are dominated by ‘<1%’ with a peak of ‘2%’ for trial court error. State courts were more fertile ground, however, the one with a success rate in double digits was driven by a large number of Eighth Amendment petitions granted in New York, which appears to have had an issue with excessive bail during the period under study, 6-7-8% being the three highest numbers for other potential grounds.
To summarize, while the appeals process might vary somewhat from state to state, in essence, it amounts to the following for most appellants:
The direct appeals process:
Appeal to a higher court, usually a court of appeals, possibly the State Supreme court in states without an intermediary appellate court.
If applicable, appeal to a higher appellate court (some states have more than one level) or the State Supreme Court.
Appeal to the Supreme Court of the United States, first going through one of the thirteen Federal Court of Appeals.
The ‘extraordinary’ appeals measures:
A writ of habeas corpus from a state court.
For state prisoners who’ve exhausted all other state appeals options: A writ of habeas corpus from a federal court.
The data available indicates that historically the direct appellate process results in a failure to affirm the trial court’s decision roughly 20-30% of the time, closer to 20% for federal appeals courts once the impact Booker vs The United States had on 2005-06 is recognized and removed.
A state writ of habeas corpus was successful on the order of 5% of the time according to the data under the study I linked.
A federal writ of habeas corpus filed by a state prisoner who’d exhausted all other options was successful roughly 1% of the time under study, keeping in mind historically that oftentimes it was employed as a desperation measure and many had no chance on the merits of the appeal.
Click on the links below for information detailing specific appellate guidelines for each state, federal courts, and the District of Columbia.