Criminal Law

Criminal Law: Appeals FAQs

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Q: Can a crime victim appeal a "not guilty" verdict?


  • A:No. A crime victim can't appeal a jury's decision that a defendant isn't guilty. Victims of crime aren't parties to a criminal action; they're witnesses.Because victims aren't parties to a criminal case, they have no right to appeal.

    You might consider contacting a civil (non-criminal) lawyer in your area to see if you can sue the defendant for money damages. Many lawyers will accept these kinds of cases on a "contingent fee" basis, where her fee is contingent on getting a settlement or verdict in your favor.

    In a civil lawsuit for money damages, you would be the "plaintiff." In a civil case, your burden of proof would be the lesser "preponderance of the evidence" standard rather than the standard of "beyond a reasonable doubt." If you prove to the jury that the defendant more likely than not caused you harm,you should prevail.


Q: Can a judge set aside a guilty plea after sentencing?


  • A:Usually, once you've been sentenced for a crime, the issue as to guilt is considered resolved. However, there are "post conviction remedies" available in certain situations:
    • If the plea or sentence was imposed in violation of a constitutional right
    • If the sentence was illegal
    • If the law under which the person was convicted is unconstitutional
    • If the court didn't have proper jurisdiction over the person or the crime
    • If new evidence has come to light since the conviction, which could not have been known at the time of the plea and sentence

    In these circumstances, the conviction and sentence can be set aside in the interest of justice.

    There are varying but strict time limits for requesting such post-conviction relief, both in state or federal courts. If you think the facts of your case fall into one of these listed categories, immediately contact an attorney in your area to find out what options might be available to you.


Q: Can I appeal my sentence?


  • A:If you're found guilty after a trial, you have the right to appeal both your conviction (the finding of guilt) and your sentence. In both state or federal courts there are time limits for filing a "notice to appeal" a conviction or sentence. In state courts, the time limits are usually different in each state.

If you pled guilty, you may not be able to appeal your conviction, unless you try to withdraw your guilty plea under a special set of rules. But you can appeal your sentence if the sentence is illegal or if it was higher than you and the prosecutor agreed to in a plea bargain, and the court agreed to the terms of the bargain before sentencing you. For a sentence to be illegal (which is rare), it has to be higher than that allowed by law.

You may also be able to request a reconsideration of your sentence on general mercy grounds.

It's also possible to have your conviction and/or sentence set aside on the grounds that it violated one or more of your constitutional rights, such as evidence used against you was obtained by police through an illegal search and seizure. Another possibility is if new evidence has been discovered since your trial. For newly discovered evidence, you'll likely have to show that you couldn't have reasonably found out about it before trial, and that if it was presented at a new trial, it would likely result in a different verdict.

Your best bet is to immediately contact a criminal defense lawyer in your area. She can review the facts of your case and advise you of all your available options. This should be done right away, as there are probably time limits on some of your options.


Q: Can I appeal on grounds of lack of evidence?


  • A:Yes, but the standard for reversing a conviction based on the lack of credibility of witnesses and insufficiency of the evidence is a very tough one. The court must decide whether the evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charged crime beyond a reasonable doubt.

A jury's decision as to which witnesses to believe is rarely reversed. The witness's testimony would have to be found to be "palpably false and incredible," such that no person would believe it to be true.

A lawyer can help you determine the likelihood of a successful appeal by looking at the records of what happened during the trial.


Q: Do I need an attorney for an appeal?


  • A:No. Like any criminal proceeding, you have the right to represent yourself on appeal. However, you should think about that carefully. An attorney can make the difference in winning and losing an appeal.

There are very strict rules that need to be followed in an appeal. There are separate rules for federal courts,and each state has its own rules, which are usually very similar to the federal rules. To start an appeal, you need to file certain forms with the clerk of the court where you were convicted.In the federal courts, and many state courts, this form is called a "notice of appeal."

One of the most important rules to keep in mind has to do with how long you have to file your notice of appeal. If you don't file it within the time allowed, it's very likely that a new court or judge won't look at your case. Generally, in federal courts, you have to file the notice within 10 days after the judgment or order you're appealing (either your conviction or sentence) is entered into the court records. This time may be different if your case was in state court.

Also, you need to be careful to "raise" or explain to the court all of the reasons why you're appealing. If you don't and the judge rules against you on appeal, in most cases you won't be allowed to file another appeal. The court will rule that you "waived" the reason by bringing it to the court's decision when you first appealed.


Q: How do you prove "ineffective assistance of counsel" on appeal?


  • A:The Sixth Amendment to the US Constitution guarantees the right to effective assistance of counsel to every defendant in a criminal case. "Effective assistance of counsel" doesn't mean perfect counsel. A lawyer's representation of a client is "ineffective" only if it falls below an objective standard of reasonableness and prejudices (has a negative impact on) his defense.

The burden is on the defendant to establish ineffective assistance of counsel. There is a strong presumption that a lawyer's conduct falls within the wide range of reasonable professional assistance. The courts won't second-guess the attorney's tactics or strategies. That is, when deciding if an attorney's assistance was effective, a judge typically won't think to herself, "I wouldn't have done that if I was the defendant's lawyer." Rather, the courts presume or take for granted that an attorney's conduct was proper and that he gave his client adequate assistance.

It's up to the defendant to show that there's a reasonable probability that, but for the lawyer's unprofessional errors, the result of the case would have been different.

Courts realize that a person ordinarily doesn't realize his lawyer's errors and evaluate his professional performance. A person may very well not know he hasn't been competently represented until after trial or appeal, usually when he consults another lawyer about the case. So many courts will allow a person to file a claim to set aside his conviction for ineffective assistance of counsel in federal court, even if he didn't directly appeal his state conviction and sentence or file to withdraw his guilty plea.

If you've missed the filing deadlines for a motion for a new trial or to file a notice of direct appeal, you might first try to reduce the sentence under your state's laws for post-conviction relief. If that fails, and you believe there are grounds to support it, you can attempt to file what's called a "habeas corpus" petition in federal court alleging ineffective assistance of counsel.


Q: What happens if I win on appeal?


  • A:Winning on an appeal doesn't necessarily mean that your conviction will be thrown out or that you have a "get out jail free" card. That can happen, but it's pretty rare. Usually what will happen is your case will be sent back (called "remanded") to the judge or court where you were convicted and/or sentenced. After that,you may:
  • Be given a new trial on the criminal charges, or perhaps the chance to negotiate a plea with the prosecution
  • Have a new sentencing hearing, where, usually, the judge or court will fix the sentence so that it's no longer illegal or follows the terms of your plea agreement. In many cases, the court on appeal will give specific instructions to judge about how to fix the sentence


Q: What is a "writ of habeas corpus?"


  • A:A writ of habeas corpus is a special "post-conviction" remedy. Writs are available in both state and federalcourts, and there are very specialized, strict rules about when, how, and why a defendant may file a writ.

    The writ is available only when a defendant has no other way to challenge or correct an injustice. For instance, a writ may be filed if a defendant has filed and lost an appeal, or the time for filing an appeal has expired.

    Habeas corpus (Latin for "you have the body") is used when a defendant thinks:

    • He's being held in prison illegally. For example, his conviction is illegal because it was based on evidence that was collected through an unconstitutional search and seizure, or
    • The conditions of imprisonment violate his rights, such as inadequate medical facilities or mistreatment by prison officials

    If a court grants the writ, the person holding the defendant, a prison warden, for example, is ordered to bring the defendant to the court. The court then holds a hearing. If it agrees with the defendant, he'll be released from prison or the prison will be ordered to correct the improper prison conditions. If the court disagrees, the defendant will be returned to prison immediately.


Q: What is an appeal?


  • A:Basically, an appeal is when the defendant (and sometimes the prosecution) doesn't like the outcome of the case and asks another judge or a higher court to look at the case again for errors or mistakes. Generally, the court on appeal doesn't re-weigh the facts or the evidence. That is, it doesn't make a new, independent decision about whether you actually committed the crime. Rather, it'll look at the case to see if the judge who made the decision made some sort of a legal mistake that makes your conviction or sentence unfair or unlawful.

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