Appeals by the Prosecution

• Published date: 01 September 2018
• DOI: http://doi.org/10.1111/jels.12190
• Author: Michael Heise,Nancy J. King
• Date: 01 September 2018

Journal of Empirical Legal Studies

Volume 15, Issue 3, 482–538, September 2018

Appeals by the Prosecution

Nancy J. King*, and Michael Heise

Scholarly and public debates about criminal appeals have largely taken place in an empiri-

cal vacuum. This study builds on our prior empirical work exploring defense-initiated

criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploit-

ing data drawn from a recently released national sample of appeals by state prosecutors

decided in 2010, as well as data from all appeals by federal prosecutors to the U.S. Courts

of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of

noncapital, direct appeals by prosecutors, including extensive information on crime type,

claims raised, type of defense representation, oral argument, and opinion type, as well

judicial selection, merits review, and relief. Findings include a rate of success for state pros-

ecutor appeals about four times greater than that for defense appeals (roughly 40 percent

of appeals filed compared to 10 percent). The likelihood of success for state prosecutor-

appellants appeared unrelated to the type of crime, claim, or defense counsel, whether

review was mandatory or discretionary, or whether the appellate bench was selected by

election rather than appointment. State high courts, unlike intermediate courts, did not

decide these appeals under conditions of drastic asymmetry. Of discretionary criminal

appeals reviewed on the merits by state high courts, 41 percent were prosecutor appeals.

In federal courts, prosecutors voluntarily dismissed more than half the appeals they filed,

but were significantly less likely to withdraw appeals from judgments of acquittal and new

trial orders after the verdict than to withdraw appeals challenging other orders. Among

appeals decided on the merits, federal prosecutors were significantly more likely to lose

when facing a federal defender as an adversary compared to a CJA panel attorney.

I. INTRODUCTION

This article presents results from the first nationwide empirical study of direct appeals by the

government in both state and federal criminal cases. Examining recently released d ata drawn

from the 2010 decisions of every state court with jurisdiction to hear criminal appeals,

1

we

provide a detailed snapshot of noncapital, direct appeals by state prosecutors, including

*Address correspondence to Nancy J. King, Vanderbilt University Law School, 131 21st Ave. S., Nashville, TN

37203-1181; email: nancy.king@vanderbilt.edu. King is Lee S. & Charles A. Speir Professor of Law, Vanderbilt Uni-

versity Law School; Heise is Professor, Cornell Law School.

We wish to acknowledge the superb research assistance provided by Griffin Farha, Mitchell Galloway, Mackenzie

Hayes, and Megan Mitchell. We are also grateful for feedback on earlier drafts provided by Jonathan Wroblewski,

Professors Tracey George, Jerold Israel, Terry Maroney, Chris Slobogin, and Marty Wells, participants in the faculty

workshop at Florida State University College of Law, and anonymous referees.

1

Survey of State Court Criminal Appeals, Inter-University Consortium for Pol. & Soc. Res. (2010), https://www.

icpsr.umich.edu/icpsrweb/ICPSR/studies/36465?q=36465 (https://perma.cc/BSC5-LDK2) [hereinafter Survey of

State Court Criminal Appeals].

482

information on crime type, claims raised, type of defense representation, oral argument, and

opinion type, as well judicial selection, merits review, and relief. Data on appeals by the pros-

ecution in federal cases presented here include similar information, drawn from datasets

recently made public by the Federal Judicial Center that include every criminal appeal to the

U.S. Courts of Appeals from 2011 through 2016,

2

supplemented with information gathered

from case filings available on PACER. In addition to this rich descriptive information, we

report, for both state and federal appeals, resultsfromanalysesinvestigating which case- and

court-specific factors correlate with a higher likelihood of success for the government appel-

lant. We also examine how state prosecutor appeals compare with both state defendant

appeals and federal prosecutor appeals. The empirical information presented here provides

an unprecedented portrayal of the real world of prosecutor appeals, with a number of sur-

prising findings.

Section II briefly summarizes the law authorizing government appeals in criminal cases

and reviews existing scholarship on these appeals. Section III sets out our research questions.

Section IV presents our study of state prosecutor appeals, including our empirical strategy,

descriptive findings, and statistical analyses examining success by prosecut or-appellants.

Section V contrasts these findings with earlier findings conce rning defense appeals in state

courts.

3

Section VI turns to appeals by the government in federal criminal cases, presenting

the methodology and findings for our study of those appeals. Section VII addresses the simi-

larities and differences between state and federal prosecutor appeals. Section VIII concludes

with potential policy implications and suggestions for further research.

II. APPEALS BY THE PROSECUTION:LEGAL CONTEXT AND

EXISTING RESEARCH

The Double Jeopardy Clause bars a prosecutor from appealing a judgment of acquittal to

gain a second opportunity for a conviction.

4

Beyond this constitutional restriction, vari-

ous statute and state constitutional provisions control when a prosecutor may appeal.

5

2

See notes 104–111; https://www.fjc.gov/research/idb/appellate-cases-filed-terminated-and-pending-fy-2008-

present (https://perma.cc/7UNN-7SKW).

3

See Michael Heise, Nancy J. King & Nicole A. Heise, State Criminal Appeals Revealed, 70 Vand. L. Rev.

1939 (2017).

4

The Double Jeopardy Clause does not bar appeals of a judgment of acquittal entered after a jury verdict of guilt

because success would require only validating a conviction already obtained, and would not provide a second

chance to obtain one. United States v. Wilson, 420 U.S. 332, 352–53 (1975).

5

For example, a number of states restrict the prosecution’s authority to appeal more closely in misdemeanor cases

than in felony cases. See, e.g., Minn. R. Crim. P. 28.04 (authorizing appeals of sentences in felony cases only); State

v. Mansfield, 104 N.E. 1001, 1001–02 (Ohio 1913) (Ohio Constitution gives the Ohio Supreme Court no appellate

jurisdiction in misdemeanor cases, and the general assembly has no authority to confer appellate jurisdiction on

the court in misdemeanor cases); State v. Smith, 2011 VT 83, 190 Vt. 222, 224, 27 A.3d 362, 364 (2011) (state can-

not appeal a final judgment in a misdemeanor case).

Appeals by the Prosecution 483

There are four categories of orders that Congress and a significant number of state legis-

latures have authorized prosecutors to appeal: orders granting a defendant’s motion to

dismiss a charge,

6

sentences the government alleges are too lenient, illegal, or the result

of procedural error,

7

new trial orders, and judgments of acquittal entered after a guilty

verdict.

8

It is these appeals challenging trial court decisions that dismiss a charge, impose a

sentence, or grant either a judgment of acquittal or a new trial after a guilty verdict—

together with appeals to a court of last resort contesting a decision of an intermediate

appellate court

9

—that we examine in this article. To accommodate data limitations and

facilitate comparisons with existing information on direct appeals by defendants, our ana-

lyses exclude interlocutory appeals,

10

petitions to appellate courts seeking relief by writ,

11

and appeals seeking relief from orders entered after the final sentence, such as post-

6

See Anne Bowen Poulin, Government Appeals in Criminal Cases: The Myth of Asymmetry, 77 U. Cin. L. Rev.

1, 15 (2008); Wayne LaFave, Jerold Israel, Nancy King & Orin Kerr, 6 Criminal Procedure § 27.3(c) (4th ed. 2015)

(noting that some states permit appeal from all final judgments, while others restrict appeals to dismissals for defi-

ciency in the charge or the unconstitutionality of the underlying statute). In the federal courts, and in a smaller

number of states, the prosecution may appeal from midtrial orders dismissing a charge for procedural error. See

18 U.S.C. § 3731 (authorizing appeal of orders dismissing the indictment or information before jeopardy attaches

or on grounds unrelated to factual innocence, orders granting a motion for new trial or for judgment of acquittal

or arresting judgment after a guilty verdict; orders granting a motion to suppress or exclude evidence, before jeop-

ardy has attached and before a verdict or finding, if the government “certifies to the district court that the appeal

is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding”).

7

For example, 18 U.S.C. § 3742 (appeal of sentence); Tex. Code Crim. P. Art. 44.01(b) (appeal of illegal sentence);

Wash. R. App. P. 2.2(b)(6) (2009) (authorizing appeal of a sentence outside the standard range for the offense).

The Double Jeopardy Clause does not bar the government from seeking a higher sentence on appeal. See gener-

ally United States v. DiFranscesco, 449 U.S. 117 (1980).

8

See LaFave et al., supra note 6, at §§ 25.3(a), 26.7(a), (b), and 27.3 (describing the authority on prosecutorial

appeals for new trial orders and judgments of acquittal after the verdict). Several states also have statutes authoriz-

ing the appeal of orders arresting judgment. For example, Or. Rev. Stat. § 138.060(1)(c) (2011); Tex. Code Crim.

Proc. Art. 44.01(a)(2) (2009).

9

In jurisdictions with two levels of appellate courts, prosecutors may seek high court review of intermediate appel-

late court decisions favoring the defense. See, e.g., Cal. Rules of Court, Rule 8.500 (2017) (“a party may file a peti-

tion in the Supreme Court for review of any decision of the Court of Appeal”); Or. Rev. Stat. § 2.520 (2017)

(allowing any party to petition the Supreme Court for review of the Court of Appeals decision).

10

Neither the federal or state data sources we examine here code an appeal from a new trial order after the verdict

as an interlocutory appeal. See Federal Judicial Center Integrated Data Base Appeals Documentation FY 2008 –

Present, https://www.fjc.gov/sites/default/files/idb/codebooks/Appeals%20Codebook%202008%20Forward_0.

pdf (https://perma.cc/XWH2-MJJN) (hereinafter FJC Codebook); Survey of State Court Criminal Appeals, supra

note 1, Codebook. Although none of the state prosecutor appeals we examine raised a claim challenging the grant

of a new trial, many of the federal prosecutor appeals coded as direct (not interlocutory) appeals challenged new

trial orders. See also LaFave et al., supra note 6, at § 27.3(c) (discussing interlocutory appeals by prosec utors

generally).

11

Many jurisdictions provide judicial review of some trial court rulings through writs of mandamus or prohibition

in addition to appeal, and in some states review by writ is more frequent than review on direct appeal. See LaFave

et al., supra note 6, at § 27.4(d) nn. 37–50 (detailing state practice); see generally Poulin, supra note 6.

484 King and Heise