How To Improve Your Chances You should not handle a criminal appeal alone. A criminal appeal involves a complex area of the law and requires adherence to procedures that, if not strictly followed, could result in your appeal being dismissed because of a technical violation, even if your appeal had legal merit. Want to know what steps you would take for an appeal and why? If you want to know how to win a criminal appeal, this article sets forth the six steps to appealing a criminal conviction. The first step you can take to improve the chances of your appeal succeeding is to choose the right appeals lawyer. You will need someone with experience in your state or federal jurisdiction. If you are appealing a criminal conviction in Pennsylvania, call us at 215-567-1220 to discuss your case. We have helped many, many clients get their sentence or conviction overturned or get a new trial, and we can help you.
Step #1: Choose an Appellate Attorney
One of the most common, and inaccurate, pieces of advice that people get when they mention filing an appeal after losing a criminal case is just to use the same attorney who defended you in the trial. This suggestion might seem sensible at first. After all, your criminal trial attorney already knows the facts of the case, the legal arguments of both sides, the objections that were made, and what occurred in the case procedurally, so he or she will be in the best position to know the issues to bring upon appeal. Right? Wrong.
You Need an Attorney Who Practices Appellate Law to Represent You on Appeal
Using your criminal trial attorney to handle your appeal might be the worst decision you can make. Your trial attorney is a criminal law generalist who has experience trying a case before a judge or jury, not deciding legal and procedural strategy and arguments on appeal. An experienced appeals attorney will know how to win an appeal in court. There are times when you need a specialist, and this is one of those times. Retaining an attorney whose practice is concentrated on state and federal appeals is similar to turning to a surgeon instead of your family doctor if you need open-heart surgery. Your family doctor might be the person most familiar with your medical history, but a heart surgeon probably knows more about the heart and is better skilled at the specific surgical techniques necessary for a successful outcome.
You Need Someone Other than Your Trial Attorney to Represent You on Appeal
Many of the errors that can overturn a conviction on appeal are made by the defendant’s attorney. How can an attorney argue to the appellate court that he or she provided ineffective assistance of counsel during the trial below? The answer is, they won’t. This deprives you of a powerful and persuasive legal argument and could cause you to lose your appeal. Additionally, for a criminal attorney to represent a defendant on appeal when they may have made errors during the trial is a conflict of interest for them, causing problems for both you and your attorney.
Step #2: File a Notice of Appeal
Once you’ve retained your appeals attorney, they will file your Notice of Appeal for you. Be sure to act quickly after conviction and sentencing, because under Pennsylvania’s Rule of Appellate Procedure 903 gives you only thirty days to file the Notice of Appeal if you were convicted in state court. If you were convicted in federal court, you only have ten days pursuant to Federal Rules of Appellate Procedure 4(b)(1)(A), 4(b)(2), 4(b)(3)(b).
Step #3: Review the Record on Appeal
What is an appeal based on? It is based on the record of your trial, which includes the trial transcript, pleadings, and any evidence presented by both sides. Your appellate attorney knows what to look for and will scour the record for possible errors. One or more of these errors are the most common basis for appeal:
- Ineffective assistance of counsel
- Improper jury instructions
- Jury or witness tampering
- Judicial misconduct
- Prosecutorial misconduct
- Errors in the admissibility of evidence
- Errors in testimony
- Errors of law
- Errors of procedure
Step #4: Prepare & File Your Brief
Your attorney will then prepare a brief of the case, crafting a fact section to persuade the appellate panel that errors occurred and a legal argument section to persuade the panel that the error resulted in your conviction. Writing a compelling and persuasive brief is a skill that takes many years of experience and many appeals to master. The prosecution will then file a brief in response to your brief, and your attorney will review it and if necessary, file another brief in response.
Step #5: Oral Argument
Some appeals require oral arguments by the attorneys for both sides, and some are decided “on the papers,” which means on your brief and on the brief of the prosecution. Either way, you need an experienced appeals attorney, because the appellate panel’s decision will be based on either his or her oral argument or brief.
Step #6: The Decision
The appellate panel will render a written decision and if you succeed, you will likely get a new trial. If you do not initially succeed, your attorney will advise you of the next steps you can take in the appellate process. What three ways can an appeals court rule? An appeals court can overturn the conviction or sentence, can remand to the trial court for a new trial, or can deny the appeal. What does it mean when you win an appeal? It means either you go free, which is rare but does happen, or you get a new trial.
You Need an Experienced Criminal Appeals Attorney By Your Side
An experienced appellate attorney knows all of the rules and procedures that apply to criminal appeals, and retaining the right attorney improves your chances of winning an appeal exponentially. You also want a new set of eyes reviewing your case to evaluate the performance of your trial counsel for possible errors. It is quite common for errors made by a criminal trial attorney during a trial to provide the basis for an appeal. Let us help you appeal your criminal conviction. Call us at 215-567-1220 to discuss your case.
