Criminal appeals involve detailed procedure. They typically take months, if not longer, to play out.
Criminal appeals are notoriously slow and complex. The following provides a general overview of the process by which they unfold. (For more information about appeals, see Appeals in Criminal Cases.)
When can I file an appeal?
The general rule is that cases may not be appealed until the trial court enters a final judgment, which is the official recording of the judge or jury’s guilty verdict or the judge’s order denying any post-trial motions. Not surprisingly, this is known as the “final judgment” rule. The ideas behind it are to prevent piecemeal and repetitive appellate review of trial judges’ rulings and to avoid appeals altogether in cases that end with not-guilty verdicts.
Eileen Johnson is on trial for assault with a deadly weapon. During the testimony of a prosecution witness, the judge admits evidence that Eileen’s attorney thinks is improper hearsay. Under the final judgment rule, Eileen cannot appeal until the case is over. (There are, however, relatively rare instances in which a party can seek a during-trial “writ” that asks an appellate court to force the trial judge to rule a certain way.) If Eileen is convicted, she can ask the appellate court to set aside the judgment based on the erroneous admission of hearsay evidence and any other viable grounds that exist.
How long do I have to decide whether I want to appeal?
Appeals are subject to strict time limits. A defendant may have to file a document called a notice of appeal very soon after entry of final judgment, often within seven to ten days.
A notice of appeal tells the prosecution and court that the defendant intends to bring an appeal. Defendants who later change their minds may withdraw notices of appeal without penalty, but if they don’t first file their notices in time, they will likely lose their right to appeal.
How long will the whole appeal process take?
The appeals process usually takes many months. A trial transcript must be prepared, and both the defense and prosecution must prepare briefs (written arguments). Also, some cases go through two or even three levels of appellate courts.
What happens after I’ve given notice that I want to appeal?
Once the defense files a notice of appeal, a transcript of the trial is prepared and sent to the appellate court and the parties. Then the appellate court schedules the deadlines for submission of legal briefs. The appellate court may also schedule a date for oral argument for the parties to appear before the judges personally to supplement their written arguments and respond to questions.
What happens after the briefs are filed?
After the defense and prosecution file their briefs, the lawyers may have the opportunity to orally argue the appeal, as discussed above. But it’s increasingly common for courts to decide appeals on the briefs and trial record (transcript, pleadings, and exhibits) without hearing argument. If an oral argument does take place, it will likely be limited in time, from a few minutes per side in some state appellate courts to 30 minutes in some federal courts. Because both sides will have submitted their arguments in writing ahead of time, the appellate judges will know what the issues are and often limit the discussion to specific questions. After that, they may take weeks or months to issue a decision.
Get a Lawyer
If you’ve been convicted of a crime and want to challenge the conviction or sentence, consult an experienced criminal appellate lawyer. Appellate lawyers have special expertise regarding the appeals process and can provide a neutral analysis of your chances.
by: Paul Bergman