Interlocutory Appeals


X. Interlocutory appeals

A. The three-part test for the collateral order doctrine

In a limited number of situations, even though the criminal case has not yet resulted in a final judgment, the defendant may be permitted to take an interlocutory appeal under the collateral order doctrine. The three-factor test to determine when the collateral order doctrine applies requires that (1) the matter to be reviewed must have been finally disposed of by the trial court; (2) the matter must be separate from merits of the case; and (3) there must be a risk of important loss if the limited review is not presently available. United States v. Fellow Freight System, Inc., 637 F.2d 1248, 1250-51 (9th Cir. 1980).

B. Supreme Court cases

The Supreme Court has applied the collateral order doctrine in very limited circumstances. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the Supreme Court held the "order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it." Id. at 546-47.

In Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), the Supreme Court explained: "To come within the 'small class' of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from final judgment." Id. at 469. Compare Sell v. United States, 539 U.S. 166, 175-77 (2003) (order to forcibly medicate the Defendant to make him competent to stand trial immediately appealable); Abney v. United States, 431 U.S. 651, 659-62 (1977) (denial of a pre-trial motion to dismiss based on double jeopardy grounds immediately appealable); Stack v. Boyle, 342 U.S. 1, 6 (1951) (order setting unreasonable bail immediately appealable), with Midland Asphalt Corp. v. United States, 489 U.S. 794, 799-802 (1989) (the denial of a motion to dismiss an indictment based on the Government's violation of the federal rule prohibiting public disclosure by Government attorneys of matters occurring before the grand jury not immediately appealable); Flanagan v. United States, 465 U.S. 259, 259-60 (1984) (pre-trial disqualification of defense counsel on conflict grounds was not immediately appealable); United States v. Hollywood Motor Car Co., 458 U.S. 263, 269-70 (1982) (denial of motion to dismiss based on vindictive prosecution claim not immediately appealable); United States v....

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