Appeals

• Pages: 883-928
• Author: Thomas J. Farrell,Brandon D. Minde

APPEALS

24-1

CHAPTER 24

APPEALS

I. GENERAL POINTS

§24:01 The Importance of the Factual Record

§24:02 Time to Appeal

§24:03 Continued Representation

§24:04 The Notice of Appeal

§24:05 The Decision to Appeal

§24:06 The Anders Brief

§24:07 Communicate With Your Client

II. INTERLOCUTORY APPEALS

§24:10 Collateral Orders

§24:11 Writs of Mandamus or Prohibition

III. PRESERVING AND WAIVING APPEAL

A. Preserving Issues

1. When to Raise Objection

§24:20 Objection Must Be Timely

§24:21 Motions in Limine

§24:22 Recess Objections

2. Objection Requirements

§24:30 Objection Must State the Basis

§24:31 Evidence Objections Must Include an Offer of Proof

§24:32 Objections to Jury Instructions

§24:33 Plain Error

§24:34 Get a Ruling

B. Waiving Appeal

§24:40 Impeaching One’s Own Witness

§24:41 Guilty Pleas

IV. THE APPELLATE COURT BRIEF AND ARGUMENT

A. The Record and Brief

§24:50 Grounds for Appeal

§24:51 The Record on Appeal and the Appendix

§24:52 Standards of Review

§24:53 The Form of the Brief

§24:54 Extensions of Time

APPEALS

Criminal Defense Tools and Techniques 24-2

B. Oral Argument

§24:60 Suggest a Narrow Ruling

§24:61 Ten Practical Tips

§24:62 Research the Judges

§24:63 The Active Bench

C. Harmless Error

§24:70 Address Harmless Error in the Reply Brief

§24:71 The Point at Issue Decided the Case

§24:72 The Error Was Structural

§24:73 The Cumulative Effect of Several Errors

V. DISCRETIONARY APPEALS

§24:80 Second Level Appeal Is Discretionary

§24:81 Continued Representation

VI. REMANDS

§24:90 Resentencing

VII. FORMS

Form 24-1 Notice of Appeal

Form 24-2 Motion for an Extension of Time

Form 24-3 Case Opening Scheduling Notice

Form 24-4 Calendaring Notice

Form 24-5 Motion to Withdraw From Appeal (Anders)

Form 24-6 Anders Brief

Form 24-7 Certified Record Order

Form 24-8 Sample Appellant Brief

Form 24-9 Excerpts From Reply Brief on Harmless Error

APPEALS

24-3 Appeals §24:04

I. GENERAL POINTS

§24:01 The Importance of the Factual Record

Success on appeal starts at trial. Not only does failure to object relegate the appellant to an unforgiving “plain

error” review, but it signals that trial counsel did not consider the issue signicant.

Well-argued objections and fully developed factual records achieve several tactical objectives. The appeals

court will not feel that its judicial compatriot below was ambushed. If the record demonstrates persistent objections

and requests, the appeals court might blame the prosecution for pursuing a tenuous legal strategy or for failing to

respond to your discovery requests.

A developed factual record also positions you to argue that your issue is a narrow, fact-specic one. Sweeping

legal arguments rarely prevail on appeal. The words of Professor Anthony Amsterdam, one of our times’ foremost

appellate advocates, on strategy for winning habeas corpus petitions apply with equal strength to defense argu-

ments on appeal:

Thus, winning a habeas case for the petitioner has become in no small part a matter of developing a bolt-

hole theory of the case: a narrow argument through which your individual client can be slipped away to

freedom, with a door somewhere in the passageway that can be slammed shut in the faces of all other

prisoners seeking to follow. ... Unless the judge is satised that s/he can give relief in this case with no

(or very little) prospect that other accused or convicted persons will escape punishment, the judges will

simply not rule your way.

[Anthony G. Amsterdam, “Foreword” to Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

Procedure (5th ed. 2005).]

§24:02 Time to Appeal

Time limits on ling the notice of appeal are brief and strictly enforced. [See Fed. R. App. P. 4(b)(1)(A) (14 days).]

Check your rules, but err on the side of caution.

The sentence is the judgment in a criminal case, and the time to appeal usually runs from the imposition of

sentence. However, some questions can arise. Motions for reconsideration extend the time to appeal only if the

motion was made properly and timely. [See United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085,

1097-99 (9th Cir. 2008).]

The time for a defendant to appeal a criminal forfeiture judgment starts when the sentence is docketed, even

though considerable ancillary litigation over third party rights may lie ahead. [See United States v. Christunas,

126 F.3d 765 (6th Cir. 1997) (dismissing as untimely defendant’s appeal that awaited the adjudication of third

party interests).]

Err on the side of caution. Since a simple notice of appeal preserves your client’s rights, there is no reason

not to le one promptly. [See §24:04.]

§24:03 Continued Representation

Filing the notice may obligate you to continue as counsel on appeal. [See Local Appellate Rules, United States Court

of Appeals for the Third Circuit, LAR Misc. 109.1 (“Trial counsel in criminal cases, whether retained or appointed,

are expected to continue on appeal absent extraordinary circumstances.”); Eleventh Cir. Rule 46-1(g)(1) (Retained

counsel must continue on appeal until successor counsel is appointed and cannot withdraw absent order of court).]

If your client has not resolved to retain you for the appeal, have the clerk of court le a notice on your client’s

behalf or assist your client in ling a notice pro se.

§24:04 The Notice of Appeal

In most jurisdictions, a simple one-page notice of appeal suces to start the appeal process.

The notice need not specify the issues on appeal. However, local practice may authorize the trial judge to

demand of the appellant a statement of issues on appeal. [See, e.g., Pa. R. App. P. 1925(b).]