Appellate Advocacy

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Legal representation by an attorney before any state or federal court of intermediate or final appeal.

The u.s. courts of appeals were created by the Evarts Act of 1891 (28 U.S.C.A. § 43) and are divided into 13 judicial circuits. The central location of each court is determined by statute (28 U.S.C.A. § 41 [1995]). In addition, a court may sit any place within its circuit, and is required by statute to sit in certain locations other than its central location (28 U.S.C.A. § 44 [1995]). Appeals are heard and decided by panels of three judges that are selected randomly, by the circuit court en banc (in its entirety), or by a division established to perform the court's en banc function in larger circuits.

The circuit courts' original jurisdiction included all matters not exclusively reserved for the district trial courts. The circuit courts also had appellate jurisdiction to review district trial court decisions in civil cases in which the amount in controversy exceeded $50 and in admiralty cases in which the amount in controversy exceeded $300. They have jurisdiction to review final decisions of the federal district trial courts, both civil and criminal. Their jurisdiction extends only to matters authorized by Congress. An appellate court has no discretion in deciding whether to consider the merits of an appeal over which it has no jurisdiction. The most common basis for appellate jurisdiction is an appeal from a final district court judgment (324 U.S. 229, 28 U.S.C.A. § 1291 [1995]). When a judgment is entered that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment," a case is completed (Catlin v. United States, 65 S. Ct. 631 [1945]).

Congress has progressively limited the Supreme Court's power to directly review trial

court decisions without a hearing in the courts of appeals. Because Supreme Court review is usually discretionary in the overwhelming majority of cases, a court of appeals is the highest federal tribunal where a litigant or defendant can receive a hearing on the merits.

The Appeals Process

An unsuccessful party in a lawsuit or administrative proceeding may file a timely appeal to an appropriate superior court empowered to review a final decision, on the ground that it was based upon an erroneous application of law. The person who initiates the appeal, called the appellant, must file a notice of appeal, along with other necessary documents, to commence appellate review. The person against whom the appeal is brought, the appellee, then files a brief in response to the appellant's allegations.

Usually, review in the federal and state courts goes through two stages: an appeal from a trial court to an intermediate appellate court, and then to the highest appellate court in the jurisdiction. An appeal may be granted as a matter of right or as a matter of certiorari (at the discretion of a superior appellate court). For example, a party may appeal from a federal district trial court to a U.S. court of appeals as a matter of right, but may appeal to the U.S. Supreme Court only by a grant of certiorari. An appellate court may hear an appeal only if the decision presented meets the statutory requirements for review.

The right to appeal is limited to the parties to the proceedings who are aggrieved by the decision because it has a direct and adverse effect upon them or their property. Also, an actual case or controversy must exist at the time of review. Issues that have become moot while the appeal is pending and cases that have been settled are not reviewable.

For a case to be appealable, a final judgment or order must have been reached by a trial court. A judgment is considered final for purposes of appeal when the action is ended in the court where it was brought and nothing more is to be decided.

An appeal must be made within the time prescribed by statute or by the rules governing the appellate court. The time for filing an appeal begins to run once a final decision has been made by the trial court. The appellant must file a notice of appeal with the clerk of the appellate court in order to begin the appeal, and send a copy to the appellee. If the appeal process is not begun within the time set by statute, any right to appeal is lost. If extenuating circumstances exist, an extension of time for filing the appeal may be granted.

The appellate court can review only the trial court record and the briefs filed by the appellant and appellee. If permitted by the appellate court, amicus curiae briefs may also become part of the record on appeal. (Amicus curiae means "friend of the court." A person who is not a party to the action may petition the court for permission to file such a brief.) The briefs must contain the facts of the case, the grounds for review, and arguments relating to the issues raised.

The appellant's brief must specifically discuss the alleged errors that entitle the appellant to a reversal of the trial court's decision and discuss why each ruling was wrong, citing authority such as a case or statute that applies to the particular point at issue. The appellee may file a brief containing arguments against reversal, discussing why the trial court's ruling was correct. Only conclusions of law, not findings of fact, made by a lower court are reviewable. Appellate courts can decide only issues actually before them on appeal.

The appellate court must decide whether the errors alleged to have been made by the trial court are harmless or prejudicial. If an error substantially injures the rights of the appellant, it is called a prejudicial error, or reversible error, and warrants the reversal of the final judgment or order. If the appeals court determines that the error is technical or minimally affects the rights of the parties or the outcome of the lawsuit, it is considered a harmless error and insufficient to require a reversal or modification of the decision of the trial court.

The appellate court may hear oral arguments from each side. These arguments, which usually last 10 to 15 minutes for each side, are intended to help the court understand the issues and to persuade the court to rule in favor of the arguing party. During the arguments, the appellate judge or judges may interrupt with questions on particular issues or points of law.

After reviewing the appeal, the appellate court may affirm the decision of the lower court, modify it, reverse it, or remand the case for a new trial in the lower court. When a decision is affirmed, the appellate court accepts the decision of the lower court and rejects the appellant's contention that the decision was erroneous. When the appellate court modifies the lower court's decision, it accepts part of the trial court's decision and determines that the appellant was partly correct in saying that the decision was erroneous. The trial court's decision is then modified accordingly. In reversing a decision, the appellate court indicates that it agrees with the appellant that the lower court's decision was erroneous. The party who lost the case at the trial court level then becomes the winning party in appellate court. Occasionally, a decision will be reversed but the lawsuit is still unresolved. Then, the appellate court orders that the case be remanded (returned) to the lower court for the determination of issues that remain unresolved.

Federal Criminal Appellate Advocacy

The sixth amendment to the U.S. Constitution guarantees a criminal defendant the right to a jury trial and the right to an attorney. The fourteenth amendment says states must provide criminal defendants with these same guarantees. The U.S. Supreme Court has repeatedly held that a person found guilty in a criminal proceeding has no constitutional right to appeal. A federal criminal defendant's right to appeal, therefore, is based on an act of Congress.

Prior to the nation's founding, many colonial legislatures allowed, by special act, new trials of criminal defendants. But generally, criminal appeals did not exist when the U.S. Constitution was drafted, and the judiciary act of 1789 (ch. 20, 1 Stat. 73) did not provide for appellate review of criminal cases. Thus, history does not support a constitutional right to criminal appeal. The issue was left to Congress.

Between 1855 and 1860, Congress refused to provide for federal criminal appellate jurisdiction, although several bills were introduced. Finally, in 1879, Congress authorized the federal circuit courts to issue writs of error in criminal cases on a discretionary basis. In 1889, Congress gave defendants sentenced to death the right of direct appeal to the U.S. Supreme Court. In 1891, it extended the Supreme Court's jurisdiction for review to all "cases of conviction of a capital or otherwise infamous crime" (26 Stat. 827, quoted in 775 S. Ct. 1332 [1957]). Because of the burden on the Supreme Court of hearing a large number of criminal appeals, in 1897, Congress transferred jurisdiction over noncapital appeals to the circuit courts of appeals. In 1911, Congress abolished the right of direct appeal to the Supreme Court in capital cases, and the circuit courts became the appellate courts for all criminal cases.

In 1894, in McKane v. Durston, 153 U.S. 684, 14 S. Ct. 913, 38 L. Ed. 867, a unanimous Supreme Court determined that no matter how serious the offense, a criminal defendant had no constitutional right to appeal her or his conviction.

The Criminal Justice Act (18 U.S.C.A. § 3006A [1995]) is an outgrowth of the Sixth Amendment right to counsel. The act requires courts to develop and implement plans to furnish representation for defendants charged with felonies or misdemeanors, other than petty offenses, who are financially unable to obtain an attorney. Although the act is directed primarily to proceedings at the trial court level, it provides that any person for whom counsel is appointed shall be represented at every stage of the criminal proceedings, from the defendant's initial appearance through the appeal process.

State Criminal Appellate Advocacy

All 50 states provide defendants some form of appeal from a criminal conviction. Appeals were well-established elements of state criminal proceedings throughout the nineteenth century. They probably developed earlier in state court systems because state governments had primary responsibility for enforcing criminal laws from the founding of the nation through the 1800s, since very few federal statutory offenses existed during this period.

Because states decided that criminal appeals were necessary to protect the innocent, the Supreme Court determined that appellate procedures must comply with the federal constitutional guarantees of due process and equal protection (Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956]). In Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), the Supreme Court held that a state violates a defendant's constitutional protections when it forces an indigent, who has a statutory right to appeal, to attempt the appeal without the assistance of an attorney. The Supreme Court reasoned that without an attorney, an appeal constituted nothing more than a "meaningless ritual." Therefore, a state must provide counsel to a defendant who wants to exercise the right to appeal but cannot afford to hire a lawyer.

In 1985, the Supreme Court held that a defendant has the right to the effective assistance of appellate counsel. The Court concluded that a defendant whose counsel does not provide effective representation is "in no better position than one who has no counsel at all" (Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821[1985]). However, in Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974), the Supreme Court held that a criminal defendant does not have a constitutional right to appointed counsel on a discretionary review.

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Court considered whether a defense lawyer must always consult with a defendant regarding an appeal of the conviction. In this case, the defendant (Flores-Ortega) alleged ineffective counsel because his attorney did not file an appeal within the 60-day time period dictated by the judge in his original case. The Court rejected a bright-line rule (a strict rule with no ability to use discretion) that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards.

The Court in Roe held that a defendant claiming ineffective assistance of counsel must show that the attorney's representation "fell below an objective standard of reasonableness" and that the attorney's deficient performance prejudiced the defendant. The Court used a test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 205, 80 L.Ed.2d 674 (1984), to determine if Flores-Ortega's attorney was constitutionally ineffective for failing to file a notice of appeal. It directed that an inquiry should begin by asking whether the attorney in fact consulted with the defendant about the appeal. Such a consultation meant advising the defendant on the pros and cons of taking an appeal and making a reasonable effort to discover the defendant's wishes. However, the defendant would still have to show that there was a reasonable probability that, but for his attorney's conduct, he would have filed a timely appeal.

In Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the Supreme Court ruled that defendants are entitled to a hearing to prove that they received ineffective counsel on an appeal. In this case, the defendant argued that his appellate attorney failed to appeal his sentence, which he claimed had been miscalculated under federal sentencing guidelines. This failure would mean serving between six and 21 months longer in prison. An appeals court held that the increase in his sentence was not serious enough to merit a review of his ineffective counsel claim. The Supreme Court disagreed, ruling that any amount of jail time justified a hearing into the issue.

The Supreme Court considered another claim of ineffective appellate counsel in Mickensv. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), but this one involved trial counsel. However, the rule announced in Mickens, could be made applicable to claims of ineffective appellate counsel. The defendant had been convicted of murder and sentenced to death. During the course of his death penalty appeals his appellate attorney discovered that the defendant's trial attorney had represented the murder victim shortly before his murder. This was not disclosed to the defendant during his trial. The defendant argued that this tainted his trial, as there was no way the defense attorney could have been objective.

The Supreme Court disagreed, in a decision that signaled a departure from its death penalty jurisprudence. Because of the finality of a death sentence, the Court previously required less hard evidence of prejudice from ineffective counsel. In Mickens, the Court stated that the general rule for ineffective counsel should also be applied to capital murder cases. Under this standard the defendant must show that "but for" the lawyer's conduct, the result of the trial would have been different. The Court will presume an adverse effect "where assistance of counsel has been denied entirely or during a critical stage of the proceeding." In Mickens, however, the Court found that the trial attorney had done an acceptable job in representing the defendant, so no adverse effect could be presumed. Because the defendant could not show that the outcome of his trial would have been any different but for the actions of his attorney, his appeal was rejected.

further readings

Arkin, Marc M. 1992. "Rethinking the Constitutional Right to a Criminal Appeal." University of California at Los Angeles Law Review 39.

——. 1990. "Speedy Criminal Appeal: A Right without a Remedy." Minnesota Law Review 74.

Beazley, Mary Beth. 2002. A Practical Guide to Appellate Advocacy. New York: Aspen Publishers.

Frederick, David C. 2002. Supreme Court and Appellate Advocacy. St. Paul, Minn.: West Group.

Junkin, Federick D. 1988. "The Right to Counsel in 'Frivolous' Criminal Appeals: A Reevaluation of the Guarantees of Anders v. California." Texas Law Review 67.

Knibb, David G. 1990. Federal Court of Appeals Manual. 2d ed. St. Paul, Minn.: West.

Rubin, Alvin B. 1989. Advocacy in the Court of Appeal. American Law Institute–American Bar Association (ALIABA). No. C380.


Criminal Law; Federal Courts; Supreme Court of the United States.