After conviction, what can you appeal?

 Posted on September 06, 2018 in Appeals

It seems like a simple question. Most of my clients believe that when you appeal a conviction you get to let the appellate court know all the mistakes that were made during trial. Unfortunately, it’s not that simple.

There are two factors that limit the complaints (or points of error) that you can raise on appeal.

The first limiting factor is the concept of preservation. Although there are some exceptions, for the most part you only get raise issues on appeal that were preserved during the trial. The usual steps to preservation are: 1) make an objection; 2) make sure the trial court rules on your objection; and 3) if you are trying to admit something into evidence, make sure you make a record of what you wouldhave admitted if allowed. If these steps are not taken, the appellate court will not be able to review your complaint, even if it was an otherwise valid legal issue.

The second limiting factor is the record itself. Sometimes bad things happen at trial, but no one records it. A juror may act inappropriately. A key witness may say something out in the hallway that contradicts her testimony under oath. A prosecutor may hide evidence. A defense attorney may provide his client erroneous advice. As serious as the above examples are, if they are not pointed out on the record, the appellate court can’t do anything about them, at least not while the case is on direct appeal.

Ways to get around these limiting factors.

But for clients frustrated about the limits of the direct appeal process, there are solutions.

First, clients need to realize that some issues are better reserved for an application for writ of habeas corpus. The direct appeal is not designed to address issues such as ineffective assistance of counsel, actual innocence, and involuntary pleas. Although it is possible to make a record in support of these grounds, normally the best bet is to wait and develop these issues through a later attack on the conviction.

Second, if you have a sympathetic trial judge, you may be able to file a motion for new trial and hold a hearing. This would allow you to make a record in support of your complains that the appellate court would be able to review. If the trial court allows you to put on evidence, you can use this hearing to question the defense attorney about his or strategy, call witnesses helpful to your case that were not called during the trial, and provide the court testimony in support of the involuntariness of a client’s plea. But there is no guarantee that the trial court will hold a hearing and allow you to make a record in support of your claims, which is why most defendants have to wait and file a writ of habeas corpus.

Finally, a good appellate attorney can sometimes get around the normal “preservation” requirement. Some errors are considered so egregious that they are “structural” in nature and don’t require an objection. Other types of error, although not structural, are nevertheless serious enough to justify appellate review, as long as the appellate attorney is able to find these errors in the record and adequately briefs them for the appellate court. For example, some jury charge errors, although not objected to by defense counsel at trial, can nevertheless still be raised on appeal.

Just remember, every case is unique. If you have specific questions about the direct appeal process, make sure to find an attorney who specializes in this area of the law that can provide you competent legal advice.