9-d-1 Appealing Your Conviction

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

9-D-1. Appealing Your Conviction

If you appeal your conviction "on the law," you will argue that legal errors in the trial deprived you of a fair trial or that the evidence used to convict you was legally insufficient. If you appeal your conviction "on the facts," you will argue that your conviction was against the weight of the evidence.

(a) "On the Law"

You can ask an appellate court to reverse the judgment "on the law" on the basis of:

(1) legal errors that deprived you of a fair trial, or

(2) legally insufficient evidence to support your conviction.¹⁴⁰

You may seek reversal on the law on grounds of legal errors that deprived you of a fair trial. In order to seek a reversal on the law due to legal errors, you must have properly preserved these errors for review, unless the error you are appealing is one that is not subject to the preservation requirement, as explained above in Section B(3). Some categories of legal errors that may support reversal include:

(1) erroneous evidentiary rulings,¹⁴¹

(2) prosecutor's misconduct,¹⁴²

(3) improper jury instructions,¹⁴³ or

(4) improper influence on the jury.¹⁴⁴ For example, in People v. Brown, the court's judgment was reversed because a juror conducted an experiment to evaluate testimony and told the jury she "could see that [the crime] was plausible," which was prejudicial to the defendant.¹⁴⁵ Note that there are many other potential legal errors, and spotting them requires thorough familiarity with relevant bodies of law, including evidence law, criminal procedure, and state and federal constitutional law. It is not possible for this Chapter or the JLM to discuss every possible error. This is a big reason that you should get a lawyer for your appeal: even if you do legal research beyond the JLM, you will likely not be able to learn enough law in time to notice errors and present them to the court as effectively as an appellate lawyer could. See Section C(1) above for how to get a lawyer.

If the appellate court does reverse your judgment because of legal errors, the court must order a new trial on the counts of the original indictment.¹⁴⁶ You cannot be retried, however, on (1) counts dismissed on appeal or in a post-judgment order, or (2) counts or offenses of which you were effectively acquitted. For example, if you were charged with first-degree murder, but convicted only of second-degree murder, you will be considered acquitted of first-degree murder and can be retried only for second-degree murder.¹⁴⁷

You may also seek reversal on the law on grounds of legal insufficiency. Legal insufficiency means that the evidence presented by the prosecution was not enough or sufficient to prove all the necessary elements of the crime for which you were convicted. For example, in order to convict a defendant of driving while intoxicated, the prosecution must prove both that the defendant was drunk and that he was driving a car. If the prosecution did not introduce any evidence that the defendant was driving a car, the evidence would be insufficient.¹⁴⁸ In determining whether the evidence presented is legally sufficient, the appellate court will weigh whether any valid reasoning or inferences could lead a rational person to the conclusion that the jury reached, viewing the evidence in the light most favorable to the prosecution.¹⁴⁹ Note that showing that evidence is legally insufficient is different from showing a verdict to be against the weight of the evidence, which is discussed in Subsection (b) below.

Like any legal error, a claim of legal insufficiency must be preserved for it to be reviewed on appeal¹⁵⁰ or else it may only be reviewed "in the interest of justice" by the Appellate Division.¹⁵¹ (See Part B(3) of this Chapter for more on the preservation requirement.) If a court grants your appeal by finding legal insufficiency, the court must dismiss those counts of your indictment that the court determines to be supported by legally insufficient evidence.¹⁵² The Double Jeopardy Clause of the Fifth Amendment¹⁵³ prohibits the prosecution from retrying any count that has been dismissed for legal insufficiency.¹⁵⁴ Thus, if the appellate court reverses every count in your indictment for legal insufficiency, you will be set free. By contrast, if the reversal is due to an error in the trial, and not because of legal insufficiency, double jeopardy will not apply and you may be retried for the same crime.¹⁵⁵

An appellate court may modify a judgment by dismissing one or more counts based on legal insufficiency, but affirming other counts for which there was legally sufficient evidence. In this situation, the appellate court has two options:

(1) it can either affirm the sentence that the trial court imposed for the counts that were not dismissed¹⁵⁶ or,

(2) it can "remand" (send the case back to the trial court) for re-sentencing.¹⁵⁷

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