How a US criminal appeal works, from notice to final ruling
A conviction in the United States is not always the end of a case. A defendant who is convicted can ask a higher court to examine whether the trial was conducted lawfully. A US criminal appeal is a review of legal questions, not a second trial, and it follows a strict sequence of deadlines, written arguments and rulings.
What an appeal is, and what it is not
Appellate courts do not hear witnesses, see new evidence or ask a jury to reconsider the facts. They work from the written record of the original case: transcripts, exhibits and the rulings made by the trial judge. The central question is whether a legal mistake occurred and, if so, whether it affected the outcome.
The prosecution generally cannot appeal an acquittal, because the constitutional protection against double jeopardy prevents a person being tried twice for the same offence. Prosecutors may, however, be able to appeal some pre-trial rulings or sentences, depending on the jurisdiction.
Step one: the notice of appeal
The process begins with a notice of appeal, a short document filed with the trial court saying the defendant intends to challenge the judgment. Deadlines are tight. In the federal system, a defendant normally has 14 days from the entry of judgment to file in a criminal case. State deadlines differ, and a missed deadline can end the right to appeal, although courts sometimes allow limited extensions.
The notice does not set out arguments. It simply starts the clock and identifies the judgment being challenged.
Step two: the record and the briefs
Court staff then assemble the record, and court reporters may need to prepare transcripts of the trial and key hearings. Lawyers then file written arguments called briefs:
- The opening brief from the appellant (the person appealing) sets out the grounds for appeal and cites the law and the record.
- The response brief from the appellee (usually the government) argues that the verdict and sentence should stand.
- A reply brief lets the appellant answer the government's points.
Common grounds for appeal
Typical grounds for appeal include evidence that should have been excluded, errors in the instructions given to the jury, insufficient evidence to support a conviction, ineffective assistance from a defence lawyer, and sentencing mistakes. A disagreement with the jury's view of the facts is rarely enough on its own.
Step three: oral argument
Many appeals are decided on the written briefs alone. Where a court does hold oral argument, lawyers appear before a panel of judges, in the federal courts typically three, and answer questions for a limited time. There is no jury and no testimony. Judges use the session to test the strongest and weakest points on each side.
How judges review the issues
The level of scrutiny depends on the kind of issue raised. This is often decisive.
| Standard | Plain-English meaning |
|---|---|
| De novo | The appeal court decides a question of law afresh, giving no deference to the trial judge. |
| Abuse of discretion | The trial judge's decision stands unless it was clearly unreasonable. |
| Clear error | Findings of fact stand unless the appeal court is firmly convinced they are wrong. |
| Plain error | Applies to issues not raised at trial; the defendant must show an obvious mistake that affected the result. |
Even a real mistake may not change the result. Courts apply a "harmless error" test and will leave a conviction in place if the mistake is unlikely to have affected the verdict.
The ruling and its outcomes
The court issues a written decision, sometimes months after argument. It may:
- Affirm the conviction and sentence, leaving them in place.
- Reverse the conviction, which may end the prosecution or allow a retrial.
- Vacate a judgment or sentence and remand the case, meaning send it back to the trial court for further proceedings, such as resentencing.
A judge on the panel may disagree, and the written dissent can matter in later challenges.
Further review
The losing side can ask for rehearing, either by the same panel or by all the judges of that court, known as en banc. Such requests are rarely granted. The next step is a petition to the US Supreme Court, which chooses the cases it hears and accepts only a small share of those submitted. In most cases the appeal court's ruling is final.
State convictions follow a similar path through state courts first. Afterwards, a prisoner may seek federal review through a habeas corpus petition, which argues that a federal constitutional right was violated. Under the Antiterrorism and Effective Death Penalty Act of 1996, such petitions face a one-year filing limit in most cases, and state remedies must generally be used first.
What a final ruling means in practice
Once the time for rehearing has passed, the appeal court sends its formal order, called the mandate, to the trial court, which then carries out the decision. For a defendant, that could mean release, a new trial, a new sentence or continued imprisonment. Plea agreements often include