A Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction

• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985

A Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction

James E. Lobsenz(fn*)

I. Introduction

In 1894 in McKane v. Durston,(fn1) a unanimous United States Supreme Court concluded that no matter how grave the offense, a criminal defendant has no constitutional right to appeal.(fn2) Since the common law failed to recognize an absolute right to appeal, it followed that review by an appellate court was "not a necessary element of due process of law."(fn3) Justice Harlan found this principle to be so self-evident that "[a] citation of authorities upon the point is unnecessary."(fn4)

Nearly ninety years later, a majority of the Court appeared to reaffirm the holding of McKane by stating bluntly: "There is, of course, no constitutional right to an appeal . . . ."(fn5) This statement did not pass unchallenged, however. Justice Black-mun in a concurring opinion found it unnecessary to decide "whether there is or is not a constitutional right to a first appeal of a criminal conviction."(fn6) Justice Brennan, in his dissenting opinion, observed that the majority's statement rejecting the concept of a constitutional right to an appeal was not only unnecessary to the decision but was also arguably wrong.(fn7) If the issue were to come directly before the Supreme Court, Brennan concluded, McKane would probably be overruled, and the Court "would decide that a State must afford at least some opportunity for review of convictions, whether through the familiar mechanism of appeal or through some form of collateral proceeding."(fn8)

Since today virtually every state recognizes a right to appeal in "significant criminal cases," premised upon either a statute or a court rule, a case presenting the issue of whether the right to appeal is guaranteed by the federal Constitution is, as Justice Brennan observed, "unlikely to arise."(fn9) Thus, one may ask, "What difference does it make whether the right to appeal a criminal conviction is of constitutional magnitude?" In this Article, I will demonstrate that it makes a significant difference.

The framers of the Washington State Constitution believed that it made a difference, for they expressly included the right to appeal from a criminal conviction in article I, section 22 of the Declaration of Rights.(fn10) In 1889 Washington thus became the first state in the nation to constitutionalize explicitly the right to appeal in criminal cases. Since that time six more states have amended their constitutions to include a specific guarantee of the right to appeal in criminal cases. Utah(fn11) and Arizona(fn12) adopted provisions nearly identical to article I, section 22 of the Washington Constitution. The constitutional provisions of Michigan,(fn13) Louisiana,(fn14) Nebraska,(fn15) and New Mexico(fn16) are worded somewhat differently. Three other states, Wisconsin,(fn17) West Virginia,(fn18) and Florida,(fn19) have recognized a constitutional right to appeal in criminal cases through the process of judicial interpretation of less explicit clauses of their state constitutions.

The many consequences of "constitutionalizing" the right to appeal become evident only when one answers certain underlying questions about the nature of an appeal. What are the essential elements of an appeal? Why should we view the criminal defendant's right to appeal as an element of due process of law? Part II of this Article seeks to develop a theoretical due process framework for use in deciding when the right to appeal under article I, section 22 of the Washington Constitution has been unconstitutionally abridged or denied. Part III contains an analysis of oral argument as an essential element of the right to appeal. Finally, parts IV through VII discuss some of the possible consequences flowing from the constitutionalization of the right to appeal in criminal cases.

II. A Due Process Framework for the Constitutional Right to Appeal in Criminal Cases

A. The Common-Law Background

In Griffin v. Illinois,(fn20) Justice Frankfurter observed that neither the common law nor national historical experience lends any support to the contention that "due process of law" should be construed as including a right to appeal in criminal cases. [N]either the unfolding content of "due process" nor the particularized safeguards of the Bill of Rights disregard procedural ways that reflect a national historic policy. It is significant that no appeals from convictions in the federal courts were afforded . . . for nearly a hundred years; and, despite the civilized standards of criminal justice in modern England, there was no appeal from convictions . . . until 1907. Thus, it is now settled that due process of law does not require a State to afford review of criminal judgments.(fn21) To Frankfurter, the right to appeal failed to qualify as an element of due process because it lacked a common-law pedigree and was only a relatively recent creation of statutory law.(fn22)

No right of appeal existed at common law.(fn23) The right, when recognized, was strictly of civil-law origin.(fn24) At common law, review of a trial court judgment of conviction could be obtained only if a defendant successfully petitioned for a "writ of error."(fn25) The critical difference between the civil-law right to an appeal and a common-law writ of error was that review was discretionary under the common-law procedure, but mandatory under the civil law. At the Washington State Constitutional Convention of 1889, the seven members of the Committee on the Constitutional Preamble and Bill of Rights, who drafted the Declaration of Rights, presumably were aware that there was no existing common-law right to appeal.(fn26) Perhaps they knew that earlier that year Congress had, for the first time, created a statutory right to appeal in federal criminal cases when a sentence of death was imposed.(fn27)

The committee submitted a draft Declaration of Rights to the convention on July 25, 1889, which contained the provision in article I, section 22 guaranteeing all criminal defendants an absolute right to appeal.(fn28) Although the committee studied three proposed constitutional models when drafting article I, section 22, the right to appeal in criminal cases did not devolve from any of them.(fn29) Thus, it can be inferred that the idea of constitu-tionalizing the right to appeal in criminal cases originated in the United States with this committee of seven, charged with the task of defining the inalienable natural rights of citizens of their state.

The Washington Supreme Court has suggested that an examination of "[t]he central principles of the common law" is an appropriate aid to state constitutional interpretation.(fn30) By interpreting our state constitutional provisions in a manner "consistent with their common law beginnings," the courts can best achieve the intentions of the framers.(fn31) But with respect to the right to appeal, there are no "common law beginnings" and no applicable "central principles of common law." The provision in article I, section 22 granting a constitutional right to appeal in all criminal cases marks a sharp break with the common-law past. Consequently, proper judicial interpretation of the scope of the constitutional right to appeal must reflect the framers' intention to transform a discretionary privilege into an absolute right.(fn32) Recognition of the historical background of the right to appeal, therefore, leads to the conclusion that the framers would have been vigorously opposed to any attempt, either legislative or judicial, to restrict a convicted defendant's right to appeal or to diminish the scope of appellate review.

B. Modern Procedural Due Process and the Right to Appeal in Criminal Cases

The modern judicial test for assessing the requirements of procedural due process, imposed upon the states by the fourteenth amendment, calls for a balancing of three distinct factors: (1) the private interest affected by the government's action; (2) the risk of erroneous deprivation of the interest if the procedural safeguard were absent; and (3) the fiscal and administrative burdens that the procedural safeguard would impose upon the government.(fn33) This formulation of the test of procedural due process necessarily implies that procedural due process "is not a technical conception with a fixed content unrelated to time, place and circumstances."(fn34) "[D]ue process is flexible," the Supreme Court tells us, "and calls for such procedural protections as the particular situation demands."(fn35)

Applying the three-factor test of procedural due process to the "particular situation" of a convicted criminal defendant, one must first ask: What is the nature of the "private interests" at stake? In In re Winship,(fn36) the Supreme Court recognized that "[t]he accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction."(fn37) The key question, then, is whether the risk of erroneously incarcerating and stigmatizing the innocent justifies the administrative and financial burdens imposed on government by recognizing an absolute right to appeal in all criminal cases.

In Winship, although...