An appeal is a request for a higher court to review a lower court decision. Even after a defendant is found guilty, they can appeal the decision if they believe they were wrongly convicted or the sentence was too harsh. An appeal is not another trial but rather an opportunity for the defendant to raise specific errors that may have occurred during the trial. There are a few different types, each following a similar process.
Types of Appeals
There are various types of appeals, depending on the type of case and subject.
As of Right
Most first appeals are considered “as of right” appeals. Many states require courts to hear these appeals directly from a trial court’s decision. Both parties involved in the case can file an unlimited number of this type of appeal.
Discretionary Appeals
Unlike “as of right” appeals, there is no legal right to file discretionary appeals. Instead, the court must determine whether or not the requesting party is allowed to bring their matter before the court. These appeals typically occur in a state’s highest court and the United States Supreme Court. It requires a party to file a writ of certiorari, which is a request to send up the record of the case for review.
Collateral Appeals
Collateral appeals challenge the legality of a conviction or sentence. This type of appeal requires a habeas corpus petition, which brings a prisoner or detainee before the court. This petition asks for a review of the person’s criminal convictions. Collateral appeals are usually discretionary.
Direct Appeals
Direct appeals almost always arise in criminal cases, appealing the criminal verdict made directly from the trial or federal court of appeals. The first direct appeal is often considered “as of right,” while subsequent appeals are typically discretionary.
Steps in the Appeals Process
Each of the four types of appeals follows a similar process in court. The five main steps in the appeal process are:
1. Hire an Attorney
The first step in the appeal process is hiring an appellate attorney before your appeal. An experienced attorney can maximize your chances of success on appeal because they know the correct time to file and can secure your appellate rights.
2. File the Notice of Appeal
The next step in the process is filing the Notice of Appeal. The Notice of Appeal is a form requiring basic information, such as the name of the parties involved, the court and case number of the order being appealed, and a summary of the grounds for appeal.
3. Prepare the Record
After filing the Notice of Appeal, you must prepare the record on appeal. Since an appeal is not a new trial, and the court won’t accept any additional evidence, the record includes any relevant hearing transcripts, evidence, testimony, and documents filed in the trial court.
4. Research and Write the Appeal
To present your case to the appellate court, your attorney must research and write an appeal brief. This brief should explain to the court why your case should be reversed. Every state has specific requirements for an appeal, so it is crucial to research these guidelines before writing the appeal.
5. Oral Argument
While some cases are decided based solely on written briefs, many are selected for an oral argument before the court. This is often the final step in the appeals process. An oral argument in the court of appeals is a structured discussion between the lawyers and a panel of judges focusing on the legal principles in dispute. Each side is given around 15 minutes to present their arguments to the court.
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