CHAPTER 16 APPEALS

• Jurisdiction: United States

Chapter 16 APPEALS

16.01 IN GENERAL

Like any other litigant, a defendant or prosecutor unhappy with the result in the trial court may wish to appeal. In criminal cases, however, appeals face significant constitutional and statutory limitations. Most importantly, if the defendant is acquitted — either by the jury or by the judge in a bench trial — the government normally cannot appeal because the Double Jeopardy Clause would bar a retrial even if the appeal were successful.¹ As a result, the vast majority of criminal appeals follow convictions, with the defendant in the role of appellant.

Although the Supreme Court has frequently stated in dictum that a convicted defendant has no constitutional right to an appeal,² all jurisdictions permit a convicted defendant to appeal serious criminal convictions after a trial.³ In state court systems, the defendant may appeal to an intermediate court below the state supreme court or, if there is none, directly to the state supreme court. In the federal courts, a defendant may appeal his conviction to the United States Court of Appeals for the circuit with jurisdiction over the case.

If a defendant is unsuccessful in his appeal of right, he can seek discretionary review in a higher court. For example, in a state in which an appeal of right is brought to an intermediate appellate court, the state supreme court is permitted, but usually not required (except in capital cases), to hear the appellant's second appeal. He may next petition the United States Supreme Court to consider his case. If his appeal is ultimately successful, he ordinarily may be reprosecuted.⁴

While the government generally may not appeal an acquittal, it can appeal a dismissal if the defendant would not be exposed to a second trial if the appeal were successful. For example, if a jury returns a guilty verdict, after which the judge grants D's motion for a judgment of acquittal notwithstanding the verdict, the government may appeal the judicial acquittal.⁵ If the appeal is successful, no new trial is required, as the original conviction may be reinstated. In many jurisdictions, the government may also appeal the sentence a judge imposes following a conviction,⁶ since the Constitution does not forbid imposition of a more severe sentence if the government's appeal is successful.⁷ Finally, many jurisdictions allow prosecution appeals of crucial pretrial rulings, before jeopardy has attached.⁸

"The Due Process Clause . . . guarantees [a] criminal defendant the effective assistance of counsel"⁹ on a first appeal. This "guarantee" requires both that an indigent defendant have counsel appointed to assist him with his first appeal,¹⁰ and that counsel provide "effective assistance" rather than merely "nominal representation."¹¹ For the discretionary appeals that may follow, however, the Constitution imposes no such requirement,¹² and many jurisdictions leave the appointment of counsel in such circumstances to appellate court discretion. If a state requires a defendant to furnish a trial transcript to the appellate court as a condition of hearing his appeal, or to pay a fee in connection with filing a notice of appeal, it must also provide the transcript or fee for indigents at state expense.¹³

The issues a criminal appellant may raise run the gamut of criminal law and procedure. In addition to virtually every issue covered in both volumes of this Text — from arrests to wiretapping and from arraignments to vindictive prosecution — an appellant may object to his treatment with regard to the substantive law or with regard to evidentiary rulings. Most criminal cases are rife with decisions in each of these areas, any one of which may be mistaken and, therefore, a possible subject of appeal.

The existence of a single error in the myriad decisions that make up a criminal case, however, does not automatically result in reversal. In federal court, three important doctrines protect the finality of judgments even when an error has been made, and many state courts follow similar rules. First, if a defendant does not object to a ruling or procedure in the trial court, the defendant cannot object to it (for the first time) on appeal, unless the mistake was "plain error."¹⁴ Second, many trial errors are subject to "harmless-error" analysis, under which a mistake does not require that a conviction be reversed unless there is a sufficient likelihood that the mistake affected the outcome.¹⁵ Finally, while a new constitutional rule that emerges from an appeal — such as the Court's ruling in Batson v. Kentucky¹⁶ — must be applied not only to the appellant but to all cases still pending on direct review,¹⁷ defendants are almost never allowed to raise new procedural rules of constitutional law through collateral attacks on their convictions.¹⁸

These three doctrines — plain error, harmless error and retroactivity — are discussed in separate sections below. Before addressing those rules, however, the next section considers a fundamental kind of appellate claim: the contention that the prosecution did not prove its case.

§ 16.02 PROOF OF GUILT

[A] Sufficiency of the Evidence

A fundamental claim frequently raised on appeal is that the evidence was simply not sufficient to support the defendant's conviction. According to the Supreme Court's decision in In re Winship,¹⁹ due process mandates that all elements of an offense be proven beyond a reasonable doubt.²⁰ But when an appellant claims the jury convicted him on the basis of evidence that fell short of this requirement, how does the Constitution dictate an appellate court decide whether this standard was satisfied? The Court addressed this question in Jackson v. Virginia.²¹

J was convicted of first-degree murder, one of the elements of which was premeditation. At trial J claimed, unsuccessfully, that he had killed in self-defense or, alternatively, that the State's evidence showed that he was too intoxicated to have acted with premeditation. When J was unable to have his conviction reversed on appeal, he commenced a habeas corpus proceeding in federal court,²² claiming that the evidence was insufficient to prove premeditation beyond a reasonable doubt.

The lower courts rejected J's claim by applying the "no evidence" doctrine of Thompson v. Louisville,²³ a pre-Winship case in which the Court had held that "a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm."²⁴ The lower federal courts had assumed that, "so long as the reasonable-doubt instruction ha[d] been given at trial,"²⁵ a federal court should apply Thompson by disturbing a state conviction on sufficiency of the evidence grounds only if the conviction failed the "no evidence" test. Following this standard, the appellate court found that there was some evidence of J's intent and premeditation and, therefore, denied his petition.

The Supreme Court concluded that the Thompson rule was "simply inadequate to protect" the Winship doctrine's requirement of proof beyond a reasonable doubt, because a " 'mere modicum of evidence may satisfy a "no evidence" standard.' "²⁶ Such an approach "could lead to absurdly unjust results" by approving convictions where the proof beyond a reasonable doubt mandated by Winship was demonstrably absent. Instead, the Court held, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."²⁷ This new constitutional standard did not help J, however, as the Court concluded that a reasonable trier of fact could have found beyond a reasonable doubt that J had the mental state necessary for first-degree murder.

The Jackson standard remains a difficult one for a convicted defendant to overcome. As the Supreme Court has subsequently emphasized: "[T]he sufficiency of the evidence review authorized by Jackson is limited to 'record evidence,' and . . . does not extend to . . . newly discovered evidence."²⁸ Furthermore, "the Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit."²⁹

[B] Weight of the Evidence

There is a somewhat less daunting path for convicted defendants to challenge the proof on which they were convicted. Some jurisdictions (including some federal courts), authorize review of the weight (as opposed to the sufficiency) of the evidence,³⁰ usually by a motion to set aside the verdict or a motion for a new trial directed to the trial judge. In granting such a motion, the judge may conclude that the verdict was against the weight of the evidence because he disagrees with the jury's evaluation of conflicting testimony, even if the evidence was sufficient under Jackson.

Because of the trial court's closer view of the case, however, appellate courts are loathe to vacate convictions as against the weight of the evidence when the trial court has refused to do so.³¹ Moreover, if a defendant succeeds in setting aside his conviction on these grounds, he may be retried, whereas if his conviction is set aside on sufficiency grounds, the Double Jeopardy Clause bars a new trial.³²

§ 16.03 PLAIN ERROR³³

[A] Background to the Plain Error Exception

The general rule is that if a defendant "fail[s] to make timely assertion of [a] right,"³⁴ in the court with the appropriate jurisdiction, he forfeits the right. Indeed, the Supreme Court has repeatedly stated that " '[n]o procedural principle is more familiar.' "³⁵ Thus, if a defendant fails to raise an objection in the trial court, he forfeits the right on which the objection was based and loses his entitlement to have the claim considered on appeal.³⁶

This "contemporaneous-objection requirement"³⁷ gives a defendant a strong incentive to raise any potential objection at the trial level and is supported by several...