views updated May 11 2018


Appellate review in criminal cases serves multiple purposes: correction of errors, supervision of trial court practice, articulation of legal standards, promotion of uniform decisionmaking, and provision of both procedural justice and its appearance. Although such review has come to be viewed as fundamental to criminal adjudication, the modern system of criminal appeals is a relatively recent phenomenon in Anglo-American law. England did not provide an adequate system of appellate review until enactment of the Criminal Appeal Act of 1907, 7 Edw. 7, c. 23 (repealed) (Meador, p. 16). In American states, appeals in criminal cases developed unevenly, but had become generally available by the end of the nineteenth century (Arkin, pp. 521523). For its first one hundred years, the federal government did not give defendants a right to appeal from criminal convictions; criminal cases were reviewable only (1) when a federal circuit courta three-judge court with trial jurisdictioncertified an issue of law on which the judges were divided, a rare occurrence (Arkin, p. 531); or (2) within the limited range of issues that could be raised by collateral attack on habeas corpus. A series of enactments spanning the period 18791970 created the present system of federal criminal review, which recognizes a right to appeal from the federal district court to the federal circuit court of appeals, with further, discretionary review available in the U.S. Supreme Court.

Appellate structures

Like the federal government, nearly forty states have two-tier appellate systems. Although the precise jurisdictional arrangements vary, the most typical pattern provides for one appeal as of right to an intermediate appellate court and for further review in the state's highest court primarily on a discretionary basisthough review as of right in the highest court (often directly from the trial level, thus bypassing the intermediate appellate court) is typically afforded from imposition of a death sentence. In two-tier systems, the state's highest court ordinarily concentrates on unifying and elaborating the law, and the intermediate appellate court, though also important in elaborating legal principles, focuses on error correction (Shapiro, p. 632). In the remaining states, appeals are heard directly by the state's highest court. The overwhelming majority of appellate courts hear civil and criminal appeals alikea scheme thought preferable because a specialized criminal court "is unlikely to attract the continuing attention, interest, and concern of the entire bar" (American Bar Association, "Commentary on Standard," chap. 21, 1.2).

Appellate courts typically decide in multijudge panels, thus permitting several judges to review matters decided by a single trial judge. Traditionally, appeals have been decided after oral argument by published written opinion, but docket pressures have led many jurisdictions, in cases deemed routine, to abbreviate or eliminate oral argument and to affirm convictions by order or by unpublished opinionspractices that have generated considerable controversy (Stern § 2.2).

Appeals by the defense

Nature of the right. In McKane v. Durston, 153 U.S. 684, 68788 (1894), the Supreme Court stated that a defendant has no federal constitutional right to an appeal. But in neither McKane nor in subsequent decisions that have reiterated that statement (e.g., Ross v. Moffitt, 417 U.S. 600, 606 (1974), and Griffin v. Illinois, 351 U.S. 12, 18 (1956)) did a state fail to provide any appellate review of criminal convictions. Doubts that the McKane dictum remains sound (e.g., Arkin; Meltzer) are unlikely to be resolved, for every state now provides some method of appeal from criminal convictions in serious criminal cases. (In Virginia, West Virginia, and New Hampshire, formally no appeal as of right exists, but the procedures that each state's highest court follows in determining whether to grant discretionary review ensure substantive consideration of the appellant's contentions; Arkin, pp. 513514.)

Except for common provisions requiring review when a death sentence is imposed, appeals in criminal cases are elective. Most jurisdictions require the trial court at sentencing to notify the defendant of the right to appeal (e.g., Rule 32(c)(5) of the Federal Rules of Criminal Procedure).

Equal protection and due process. Whether or not the U.S. Constitution confers a right to appeal, once state law confers such a right, a state may not, consistent with the Fourteenth Amendment, deny indigent defendants the right to meaningful appellate review. The Supreme Court first applied that principle in Griffin, holding that indigent defendants are entitled to a free trial transcript so that they would have "as adequate appellate review as defendants who have money enough to buy transcripts" (p. 19). The Court has read Griffin as "a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way"Mayer v. Chicago, 404 U.S. 189, 196197 (1971)and thus has invalidated a rule conditioning the right to appeal on payment of a filing fee (Burns v. Ohio, 360 U.S. 252, 258 (1959)).

The Griffin principle was extended in Douglas v. California, 372 U.S. 353, 35758 (1963), where the Supreme Court ruled that on a defendant's first appeal, granted as a matter of right, an indigent defendant is entitled to counsel to brief and argue the appeal. The right recognized in Douglas comprehends assistance of counsel that satisfies constitutional standards of effectiveness (Evitts v. Lucey, 469 U.S. 387 (1985)). But in Ross v. Moffitt, the Court declined to extend Douglas to require counsel for indigents who seek discretionary review before the state's highest court. Focusing less on equal treatment of rich and poor appellants and more on ensuring adequate access to appellate review, the Court reasoned that a "meaningful appeal" at the second tier was possible without counsel, for a lawyer would already have briefed and argued the first appeal, ensuring that the "defendant's claims of error are organized and presented in a lawyer-like fashion" (pp. 612, 615).

Because indigent criminal appellants, unlike most civil appellants, typically have everything to gain and nothing to lose by seeking review, Douglas gave rise to the troublesome question of the appropriate role for a court-appointed counsel who believes an appeal utterly without merit. In Anders v. California, 386 U.S. 738, 744 (1967), the Court held that a lawyer who, after a "conscientious examination" of the case, finds an appeal to be "wholly frivolous" should so advise the court and request permission to withdraw. The opinion in Anders added, however, that because the court, not counsel, must decide whether the appeal is frivolous, the lawyer's request must include "a brief referring to anything in the record that might arguably support the appeal" (p. 744), a copy of which must be furnished to the defendant, who then may raise additional points with the court. Some have criticized Anders for diverting limited resources from meritorious cases, though others have noted that appellate reversals sometimes occur even after appointed counsel has filed an "Anders brief " explaining the hopelessness of the case (Hermann, p. 709), and some states have further limited counsel's latitude by prohibiting withdrawal altogether (Warner, pp. 643651). More recently, however, in Smith v. Robbins, 120 S. Ct. 726 (2000), the Supreme Court relaxed the strictures governing counsel, ruling that the Anders procedures are not the only way to satisfy the Constitution. In Smith, the Court approved a state procedure under which counsel's filing on appeal did not identify any arguable issues, but merely (1) summarized the case history; (2) attested that counsel had reviewed the record, consulted with his client, and supplied the client with a copy of the brief; and (3) requested that the court examine the record for arguable issues.

The final-order requirement. In general, appeal may be taken only from a final judgment, which typically means after conviction and imposition of sentence. The final judgment rule, though not unique to criminal cases, has been followed there with particular stringency because "the delays and disruptions attendant upon intermediate appeal," which the rule is designed to avoid, "are especially inimical to the effective and fair administration of the criminal law" (DiBella v. United States, 369 U.S. 121, 126 (1962)).

Most jurisdictions do, however, permit appeal from some set of orders not strictly final. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), a civil case, the Supreme Court concluded that a pretrial ruling should be deemed "final" for purposes of appeal in the federal system if (1) the lower court has fully decided the question; (2) the decision was not merely a step toward final disposition of the merits of the case but instead resolved a collateral issue; and (3) the decision involved an important right that would be lost, probably irreparably, if review had to await final judgment.

The Supreme Court has found the collateral order rubric of Cohen applicable in only three criminal cases. In Stack v. Boyle, 342 U.S. 1, 4 (1951), the Court ruled that a defendant may immediately appeal a pretrial order setting bail. (Whether under a variant of the collateral order doctrine or specific statutory authorizationas federal law now provides, see 18 U.S.C. § 3145both defense and prosecution are typically authorized to appeal bail decisions.) Under the Cohen rationale, appeal has also been permitted from a trial court's denial of a motion to dismiss an indictment when the defendant claimed to be immune from prosecution under the double jeopardy clause (Abney v. United States, 431 U.S. 651, 662 (1977)) or the speech or debate clause (Helstoski v. Meanor, 442 U.S. 500, 508 (1979)); in both cases, the Supreme Court reasoned that the right at issue would be undermined by the mere occurrence of the trial. But the Court has not applied the Cohen doctrine expansively, refusing to permit an immediate appeal from a pretrial order that disqualified the defendant's counsel (Flanagan v. United States, 465 U.S. 259, 270 (1984)) or that denied a defense motion presenting the claim that the prosecution was vindictive (United States v. Hollywood Motor Car Co., 458 U.S. 263, 270 (1982)) or that the defendant had been denied a speedy trial (United States v. MacDonald, 435 U.S. 850, 853 (1978)).

Many states follow Cohen 's collateral order doctrine or some similar approach that permits immediate appeal of some orders not strictly final. While a few states authorize interlocutory review more broadlyfor example, where "appeal would be in the interest of justice" (Utah Code Crim. Proc. § 7718a1)typically judicial authorization is required and is sparingly provided.

Bail pending appeal. Following conviction a defendant no longer enjoys the presumption of innocence, and thus the criteria governing release pending appeal are generally stricter than those applied pending trial. Some jurisdictions deny bail pending appeal for a category of more serious offenses; others make bail pending appeal, unlike bail pending trial, a matter of discretion rather than of right; still others make bail available only when the defendant demonstrates that the appeal raises a substantial question.

Appeals by the prosecution. Prosecution appeals typically require specific statutory authorization, and virtually every jurisdiction authorizes appeals from at least some orders. Some jurisdictions, including the United States, essentially permit government appeals from all decisions dismissing charges, whether before or after trial, except when further prosecution would be barred by the double jeopardy clause (e.g.,18 U.S.C. § 3731)a bar that applies after a jury verdict of not guilty or after any other judgment deemed to constitute an acquittal.

Many jurisdictions also authorize interlocutory appeals by the prosecution from specified ordersmost commonly, pretrial decisions to suppress evidence (e.g., 18 U.S.C. § 3731)in part because if an erroneous decision to suppress leads to an acquittal, double jeopardy principles will preclude a government appeal. Because of the obvious concern about delay and disruption, interlocutory appeals are rarely permitted once trial has commenced.

Extraordinary writs

Either the defense or the prosecution may seek an extraordinary writ (e.g., mandamus or prohibition) from an appellate court to review decisions not otherwise appealable. Traditionally, such writs were available only in narrow circumstanceswhere, for example, the lower court failed to perform a ministerial duty or lacked jurisdiction. During the latter part of the twentieth century, many courts have relaxed the standards governing such writs (e.g., to comprehend a gross abuse of discretion or a serious legal error of general significance). Nonetheless, many jurisdictions express greater reluctance to issue such writs in criminal than in civil matters (e.g., Will v. United States, 389 U.S. 90 (1967)).

Mootness and related doctrines

No appeal will lie when post-trial eventsfor example, the death of the convictrender the case moot. Most jurisdictions have now departed from the traditional view that an appeal is moot whenever the sentence has been fully satisfiedthat is, when the defendant has paid any fine and served the full period of any imprisonment or probation. A limited departure from the traditional position, in cases in which a fine has been paid, treats an appeal as alive if state law permits remittance of the fine upon overturning of the conviction.

A far broader and more common departure from the traditional view permits defendants to appeal, even where a sentence has been fully served, in order to avoid harmful collateral consequences of criminal convictions (e.g., possible enhanced punishment under recidivism statutes or testimonial impeachment should the convict testify in the future) (Sibron v. New York, 392 U.S. 40, 5058 (1968)). When collateral consequences are presumed to exist, as they are in many jurisdictions, this doctrine approaches in practice, if not in theory, the view taken by a few jurisdictions that quite apart from collateral consequences, a conviction is never moot because the "stigma of guilt" remains even after the sentence has been satisfied (e.g., Jackson v. People, 376 P.2d 991, 994 (Colo. 1962)). However, an appeal that challenges the legality not of the conviction but only of a sentence that has been fully served is likely to be deemed moot, unless collateral consequences from the harsher sentence can be demonstrated (North Carolina v. Rice, 404 U.S. 244, 248 (1971)).

Concurrent sentence doctrine. Where a defendant had been sentenced to equal concurrent sentences on different counts, some appellate courts, after upholding the conviction on one count, will not consider challenges to the remaining counts. In Benton v. Maryland, 395 U.S. 784 (1969), the Supreme Court concluded that this so-called concurrent sentence doctrine could not, in light of Sibron, be justified on mootness grounds but stated that it "may have some continuing validity as a rule of judicial convenience" (p. 791). Following Benton, all but two of the federal circuits have embraced the concurrent sentence doctrine as a discretionary matter of judicial administration; only a few state courts have followed suit.

Scope of appellate review

In general. Appellate review, based as it is upon the written record assembled at the trial level, is often deferential, particularly with regard to discretionary trial management decisions, issues heavily intertwined with fact and testimonial credibility, and the trier of fact's determination of guilt. Review of the trial court's elaboration of legal standards is generally de novo, and many jurisdictions also review de novo the application of constitutional or other legal standards to the facts (e.g., Ornelas v. United States, 517 U.S. 690, 699 (1996)).

Conviction by guilty plea. Appeals from a conviction by guilty plea are typically limited to claims that the trial court lacked jurisdiction, that the procedure for entry of the plea was defective, that the sentence was illegal, and, in some states, that the charge failed to state an offense. Other objections are generally deemed to have been waived by entry of the plea. While convictions by plea far outnumber convictions after trial, appeals from conviction at trial far outnumber appeals from conviction by pleas (Davies, p. 558).

The federal government (see Fed. R. Crim. Proc. 11(a)(2)) and nearly half the states permit a defendant (typically only with government consent and court approval) to enter a conditional guilty plea, which reserves the right to appeal on a specified issue. If the appeal prevails, the defendant is then permitted to withdraw the earlier plea and to plead anew.

Review of sentence. In the United States, unlike many other countries, appellate review of a sentence imposed under traditional indeterminate systems rarely extended beyond ensuring that the sentence did not exceed the statutorily authorized punishment or was not influenced by factors that could not constitutionally be considered (e.g., Dorszynski v. United States, 418 U.S. 424, 43132 (1974)). Appellate review of sentences has become far more common and somewhat more robust, however, in the last quarter of the twentieth century, for several reasons: (1) a number of states have extended review of sentencing decisions to embrace claims of clear abuse or clear mistake; (2) a significant minority of states have adopted determinate sentencing systems, which typically authorize appeals contending that the sentence violated applicable rules; and (3) review of death sentences is now routine to ensure compliance with the complex state and federal rules governing capital punishment.

Prosecution appeals of sentences have most commonly been authorized in determinate sentencing systems (e.g., 18 U.S.C. § 3742(b)), and in general do not violate the double jeopardy clause. However, the prosecution may not appeal the sentencer's refusal to impose a death sentencea decision ordinarily treated as an "acquittal" of capital punishment (Bullington v. Missouri, 451 U.S. 430, 446 (1981)).

Issues not properly raised. Every jurisdiction prescribes rules of pretrial and trial practice governing when and in what fashion particular objections (e.g., to the adequacy of the charge, to the admission of evidence, or to jury instructions) must be made. To induce compliance with those rules and promote orderly judicial administration, appellate courts ordinarily will not consider objections that were not properly presented at the trial level and consequently not ruled upon by the trial court.

Limited exceptions to this rule are typically recognized. First, a procedural requirement that itself violates due process cannot bar appellate review (Reece v. Georgia, 350 U.S. 85 (1955)). In addition, most states permit a defendant to challenge the trial court's jurisdiction for the first time on appeal; states divide more evenly on whether they permit appeal of issues not raised below but based on newly announced legal decisions.

The most important and virtually universal exception authorizes appellate courts to consider "plain error," whether or not properly raised below. To qualify as plain error under the federal doctrine, an error must not only be clear and obvious, but must also be shown by the defendant to be prejudicial, in the sense of likely affecting the outcome of the case (United States v. Olano, 507 US. 725 (1993)). In determining whether to reach an issue raised for the first time on appeal, many states will consider, in addition to factors similar to those that govern under federal law, whether the legal issue is of general significance, whether it is constitutional in nature, and whether its consideration would promote judicial economy or the public interest.

In the end, plain error has proven hard to define and has a somewhat discretionary character. In practice, it is more likely to be found when defense counsel's representation was questionable or when the evidence of guilt is relatively weak.

Harmless error on appeal

In general. A determination on appeal that there was error at trial does not always require reversal. Rather, because minor errors are common and "[a] defendant is entitled to a fair trial but not a perfect one" (Lutwak v. United States, 344 U.S. 604, 619 (1953)), every jurisdiction follows some variant of the rule that harmless errors may be disregarded.

There is no agreement, however, as to just how the harmless-error standard should be formulated or how demanding it should be. On the first question, the most common approaches are (1) an "outcome-impact" approach, which focuses on whether the error influenced the jury in reaching its verdict; and (2) the "correct result" approach, which focuses on the force of the evidence against the defendant, error aside. The latter approach has often been criticized, on the grounds that it transforms the appellate court into a trier of fact and that even guilty defendants have a right to a fair trial, but it has not disappeared from the case law (Edwards, pp. 11921194). The decisions do not, however, always clearly apply a well-defined approach, often adverting to a range of factors in reaching a conclusion without specifying clearly the nature of the harmless error analysis. In any event, the verbal formulas may matter less than the attitude brought to the harmless error inquiry by the appellate judges. No doubt, the stronger the appellate court's belief that the defendant was guilty, the more likely it is that the error will be found harmless; indeed, concern has been expressed that appellate courts too readily find serious errors to be harmless when convinced of the defendant's guilt (Edwards, pp. 11911192).

States also vary in how strong a showing of harmlessness must be made. In the federal system, reversal is required if the appellate court determines that the error "had substantial and injurious effect or influence in determining the jury's verdict" (Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In the states, standards range from demanding that the defendant prove it more probable than not that an error affected the outcome (People v. Lukity, 596 N.W.2d 607, 612 (Mich. 1999)) to requiring that the prosecution establish that an error was harmless "beyond a reasonable doubt" (Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978)).

Errors involving constitutional rights. When the error is one of federal constitutional law, the question whether the error was harmless is governed by a federal standard. In Chapman v. California, 386 U.S. 18, 24 (1967), the Court, rejecting the view that federal constitutional error is never harmless, ruled that such error required reversal unless the prosecution could demonstrate that it "was harmless beyond a reasonable doubt." The basis for imposing this requirement on state courts is uncertain: it is unclear why a state should not be free to adopt a harmless error standard on appeal that is less favorable to the defendant than the Chapman standard, when the Supreme Court has insisted that the state could eliminate appeals by the defendant altogether (Meltzer, p. 12).

While some have viewed the Chapman test as too strict, contending that an appellate court can rarely find the requisite degree of certainty that the error had no effect (Traynor, pp. 4344), others have contended that by its nature the test may not be strict enough, for constitutional error (such as the admission of impermissible evidence) may have significantly shaped trial strategies in ways not apparent to the appellate court (Saltzburg, p. 990).

The Supreme Court has stressed that constitutional errors are presumptively subject to harmless error analysis (Rose v. Clark, 478 U.S. 570, 579 (1986))even, for example, admission of a coerced confession (Arizona v. Fulminante, 499 U.S. 279, 285 (1991)), or the failure to instruct the jury of the need to find an essential element of the offense (Neder v. United States, 119 S. Ct. 1827, 1831 (1999)). The Court has, however, recognized a limited class of fundamental constitutional errorsincluding total deprivation of the right of counsel, denial of the right to self-representation, trial before a biased judge, racial discrimination in selection of the grand jury, denial of the right to a public trial, and improper instructions on proof beyond a reasonable doubtthat are "so intrinsically harmful" and that so infect the entire trial process that they defy harmless error analysis and require automatic reversal (Neder v. United States, p. 1833).

Effect of reversal on appeal

A retrial is ordinarily permitted after reversal of a conviction, except where retrial itself is the harm (as would usually be true when reversal was based on a claim of immunity, double jeopardy, or denial of a speedy trial) or where reversal was for insufficient evidence. Double jeopardy principles do not forbid imposition of a stiffer sentence after reconviction, but to protect a defendant's freedom to appeal, the Supreme Court ruled in North Carolina v. Pearce, 395 U.S. 711, 725 (1969), that due process requires that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial," and, indeed, that even an appearance of vindictiveness must be avoided. Consequently, in Pearce the Court held that a judge may impose a more severe sentence upon a defendant after a retrial only if the reasons for doing so are made part of the record and are based upon "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding" (p. 726).

The principle that Pearce announced has not been expansively applied. In Colten v. Kentucky, 407 U.S. 104 (1972), the Court held the principle inapplicable to sentences imposed after a defendant, convicted at trial, had exercised a statutory right to be tried de novo by a higher-level trial court. The Supreme Court stressed "that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly" (pp. 116117). Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17, 35 (1973), the Court found little potential for vindictiveness, and hence no constitutional defect, when the jury at the retrial, not knowing what the sentence had been at the original trial, imposed a stiffer sentence. And in Alabama v. Smith, 490 U.S. 794, 80102 (1989), the Court declined to apply the Pearce presumption of vindictiveness when a judge had imposed a longer sentence after trial than he had after an earlier guilty plea that was later vacated. The Court ruled that because the factors that counsel leniency after a guilty plea were no longer present and because a trial gives the judge a fuller understanding of the circumstances than does a plea colloquy, there was no basis to presume that a stiffer sentence was motivated by vindictiveness.

Daniel J. Meltzer

See also Bail; Capital Punishment: Legal Aspects; Counsel: Right to Counsel; Criminal Procedure: Constitutional Aspects; Double Jeopardy; Guilty Plea: Accepting the Plea; Habeas Corpus; Sentencing: Guidelines.


American Bar Association. Criminal Appeal. In Standards for Criminal Justice, 2d ed. Vol. 4, chap. 21. Boston: Little, Brown, 1980.

Arkin, Marc M. "Rethinking the Constitutional Right to Appeal." UCLA Law Review 39 (February 1992): 503580.

Davies, Thomas Y. "Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeal." American Bar Foundation Research Journal no. 3 (1982): 543648.

Edwards, Harry T. "To Err Is Human, but Not Always Harmless: When Should Legal Error Be Tolerated?" New York University Law Review 70, no. 6 (1995): 11671213.

Flango, Carol R., and Rottman, David B. Appellate Court Procedures. Williamsburg, Va.: National Center for State Courts, 1997.

Hermann, Robert. "Frivolous Criminal Appeals." New York University Law Review 47, no. 4 (1972): 701.

LaFave, Wayne R., and Israel, Jerold H. Criminal Procedure, vol. 3, chap. 26, pp. 171281. St. Paul, Minn.: West Publishing, 1984, 1991 supp.

Meador, Daniel. Criminal Appeals: English Practices and American Reforms. Charlottesville: University Press of Virginia, 1973.

Meltzer, Daniel J. "Harmless Error and Constitutional Remedies." University of Chicago Law Review 61, no. 1 (1994): 139.

Orfield, Lester B. Criminal Appeals in America. Boston: Little, Brown, 1939.

Rossman, David. "'Were There No Appeal': The History of Review in American Criminal Courts." Journal of Criminal Law & Criminology 81, no. 3 (1990): 518566.

Saltzburg, Stephen A. "The Harm of Harmless Error." Virginia Law Review 59 (1973): 988.

Shapiro, Martin. "Appeal." Law & Society Review 14, spring (1980): 629661.

Stacy, Tom, and Dayton, Kim. "Rethinking Harmless Constitutional Error." Columbia Law Review 88, no. 1 (1988): 79143.

Stern, Robert L. Appellate Practice in the United States, 2d ed. Washington, D.C: Bureau of National Affairs, 1989.

Stith, Kate. "The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal." University of Chicago Law Review 57, no. 1 (1990): 161.

Traynor, Roger. The Riddle of Harmless Error. Columbus: Ohio State University Press, 1970.

Warner, Martha C. "Anders in the 50 States: Some Appellants' Equal Protection Is More Equal than Others." Florida State University Law Review 23, no. 3 (1996): 625667.


Abney v. United States, 431 U.S. 651, 662 (1977).

Alabama v. Smith, 490 U.S. 794, 80102 (1989).

Anders v. California, 386 U.S. 738, 744 (1967).

Arizona v. Fulminante, 499 U.S. 279, 285 (1991).

Benton v. Maryland, 395 U.S. 784 (1969).

Bullington v. Missouri, 451 U.S. 430, 446 (1981).

Burns v. Ohio, 360 U.S. 252, 258 (1959).

Chaffin v. Stynchcombe, 412 U.S. 17, 35 (1973).

Chapman v. California, 386 U.S. 18, 24 (1967).

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 121, 126 (1962).

Colten v. Kentucky, 407 U.S. 104 (1972).

Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978).

DiBella v. United States, 369 U.S. 121, 126 (1962).

Dorszynski v. United States, 418 U.S. 424, 43132 (1974).

Douglas v. California, 372 U.S. 353, 35758 (1963).

Evitts v. Lucey, U.S. 387 (1985).

Flanagan v. United States, 465 U.S. 259, 270 (1984).

Griffin v. Illinois, 351 U.S. 12, 18 (1956).

Helstoski v. Meanor, 442 U.S. 500, 508 (1979).

Jackson v. People, 376 P.2d 991, 994 (Colo. 1962).

Kotteakos v. United States, 328 U.S. 750, 776 (1946).

Lutwak v. United States, 344 U.S. 604, 619 (1953).

Mayer v. Chicago, 404 U.S. 189, 19697 (1971).

McKane v. Durston, 153 U.S. 684, 68788 (1894).

Neder v. United States, 119 S. Ct. 1827, 1831 (1999).

North Carolina v. Pearce, 395 U.S. 711, 725 (1969).

North Carolina v. Rice, 404 U.S. 244. 248 (1971).

Ornelas v. United States, 517 U.S. 690, 699 (1996).

People v. Lukity, 596 N.W.2d 607, 612 (Mich. 1999).

Reece v. Georgia, 350 U.S. 85 (1955).

Rose v. Clark, 478 U.S. 570, 579 (1986).

Ross v. Moffit, 417 U.S. 600, 606 (1974).

Sibron v. New York, 392 U.S. 40, 5058 (1968).

Smith v. Robbins, 120 S. Ct. 726 (2000).

Stack v. Boyle, 342 U.S. 1, 4 (1951).

United States v. Hollywood Motor Car Co., 458 U.S. 263, 270 (1982).

United States v. MacDonald, 435 U.S. 850, 853 (1978).

United States v. Olano, 507 U.S. 725 (1993).

Will v. United States, 389 U.S. 90 (1967).


views updated Jun 08 2018


Timely resort by an unsuccessful party in a lawsuit or administrative proceeding to an appropriate superior court empowered to review a final decision on the ground that it was based upon an erroneous application of law.

A person who initiates an appeal—the appellant, sometimes called the plaintiff in error, must file a notice of appeal, along with the 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.

There are usually two stages of review in the federal court and in many state court systems: an appeal from a trial court to an intermediate appellate court and thereafter to the highest appellate court in the jurisdiction. Within the appellate rules of administrative procedure, there might be several levels of appeals from a determination made by an administrative agency. For example, an appeal of the decision of an administrative law judge may be heard by a reviewing body within the agency, and from that body, the appeal may go to a trial court, such as a federal district court. Thereafter, the appeal might travel the same route as an appeal taken from a judicial decision, going from an intermediate to a superior appellate court, or it might go directly to a superior appellate court for review, bypassing the intermediate stage. The

rules of appellate procedure applicable to a particular court govern its review of cases.

Right to Appeal

There is no absolute right of appeal for all decisions rendered by a lower court or administrative agency. Federal and state constitutions and statutory provisions create appellate courts and prescribe the types of cases that are within their jurisdiction. An appeal may be granted as a matter of right, such as from a trial court to an intermediate appellate court or only at the discretion of a superior appellate court, for example, by a grant of certiorari by the Supreme Court. If the decision presented does not meet the statutory requirements for review, the appellate court is powerless to hear the appeal and review is denied.

The right to appeal a decision is limited to those parties to the proceeding who are aggrieved by the decision because it has a direct and adverse effect upon their persons or property. In addition, 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 during that time are not reviewable.

Final Decision

A final judgment or order must have been reached by the trial court in order for a case to be appealable. A judgment is considered final for purposes of appeal when it ends the action in the court in which it was brought and nothing more is to be decided. This rule is intended to prevent the piecemeal litigation of a lawsuit, to avoid delay resulting from interlocutory appeals, and to give the trial court the opportunity to render a decision in the case to the satisfaction of both parties, thereby obviating the need for appeal. The consideration of incidental matters, such as the computation of interest, attorneys' fees, or court costs, does not prevent a judgment or order from being appealed.


Error is the basis for review of a final decision rendered by a court or administrative agency. Error is called to the attention of a court through the use of objections, protests made during the course of a proceeding that an action taken by the opposing side in a controversy is unfair or illegal. Decisions rendered in favor of one party at trial level are presumed by an appellate court to be correct unless objections have been made to the issues in question during the trial. Failure to do so will preclude their review on appeal. An objection must be made as promptly and specifically as possible for each act to which it is directed so that the court may make an intelligent decision regarding its merits. The trial judge rules on the objection, and the decision is included in the trial record. If the attorney for either party disagrees with the ruling, he or she may take an exception, an objection taken to a decision of a court on a matter of law, which is noted in the trial record to be preserved for purposes of appeal. Appellate jurisdiction is limited only to a review of actions taken by an inferior court. No new objections can be raised before an appellate court for its consideration unless exceptional circumstances exist to justify the appellate court raising the issues sua sponte, on its own motion. Exceptional circumstances mean the presence at trial of plain error, a mistake in the proceedings that substantially affects the rights of the party against whom the decision has been made and undermines the fairness and integrity of the judicial system, causing a miscarriage of justice.

Time of Appeal

Appeals must be made within the time prescribed by statute or by the governing rules of the appellate court. Such statutes begin to run only after a final decision has been made. The timely filing of the notice of appeal with the clerk of the appellate court and the appellee completes, or perfects, the procedure. If the appeal is not taken and perfected within the time set by statute, the right to appeal is foreclosed. Extensions of time for the filing of an appeal may be granted, however, if extenuating circumstances exist, such as if either party is adjudicated incompetent or dies.

Notice of Appeal

A notice of appeal—a written document filed by the appellant with the court and a copy of which is sent to the appellee—is the initial step in the appeals process. It informs the court and the party in whose favor a judgment or order has been made that the unsuccessful party seeks a review of the case. Failure to file a notice of appeal according to the statutory requirements will preclude appeal.


An appeal bond, a promise to pay a sum of money, must often be posted by an appellant to secure the appellee against the costs of the appeal, if the appellee is successful and the appellant fails to pay. Its amount is determined by the court itself or by statute. The imposition of such a bond discourages frivolous appeals. If successive appeals are taken from an intermediate appellate court to a superior one, a new bond is usually required.

Record on Appeal

The function of the appellate court is limited to a review of the trial record sent up from the lower court and the briefs filed by the appellant and appellee. amicus curiae briefs, if permitted by the appellate court, also become part of the record on appeal. The trial record, sometimes called the record proper, must show the pleadings that initiated the case, the complete transcript (in cases of jury trial) of lower court proceedings, the verdict, and the entry of the final judgment or order. The appellant must clearly demonstrate that the grounds for review had been raised and unsuccessfully decided upon at the trial level and, therefore, prejudicial error exists to warrant the reversal of the decision of the lower court.

In some jurisdictions, a bill of exceptions—a written statement of the objections made by a party to the ruling, decision, charge, or opinion of the trial judge—must be submitted to the appellate court to provide a history of the trial proceedings. It should not include matters that belong in the record proper but, instead, should state those points concerning questions of law raised by the exceptions taken during the trial. The appellant's attorney prepares the bill and presents it to the trial judge for settlement, an agreement between the trial judge and the appellant that the bill contains a truthful account of the events of the trial. If there is disagreement, the judge returns the bill to the appellant with an explanation. The appellee must be given notice of the time and place of the settlement of the bill of exceptions in order to object to or approve its contents. The settled bill of exceptions becomes part of the trial transcript, which is part of the record on appeal. The appellant must submit a complete unabridged transcript of the trial that is prepared by the clerk of the trial court.

The entire trial record is printed and filed with the appellate court, and a copy is also sent to the appellee.

Assignment of Errors

A statement by the appellant of the errors alleged to have been committed in the lower court is an assignment of errors, a type of appellate pleading used to point out to the appellate court the grounds for review. It controls the scope of an appeal because if a ground for review is not contained in it, it will not ordinarily be considered by the court. The assignment of errors is usually part of the notice of appeal, the bill of exceptions, the transcript of the record, or the brief, although in some jurisdictions, it is a separate document.

Appellate Brief

The appellant and appellee must file individual briefs to aid the appellate court in its consideration of the issues presented. Failure to do so results in a dismissal of the appeal. The facts of the case, the grounds for review, and the arguments relating to those questions must be concisely stated. Any statements referring to the trial record must be supported by an appropriate reference to it.

The appellant's brief must specifically discuss the alleged errors that entitle the appellant to a reversal and discuss why each ruling of the lower court was wrong, citing authority, such as a case in which a similar point of law has been decided or a statute that applies to the particular point in issue. Disrespectful or abusive language directed against the lower court, the appellate court, the parties, witnesses, or opposing counsel cannot be used. If it is, it will be stricken from the brief, and the costs of the brief that might have been awarded are disallowed.


Appellate courts have jurisdiction to decide only issues actually before them on appeal and nothing else. They cannot render opinions on controversies or declare principles of law that have no practical effect in settling the rights of the litigants.

Only conclusions of law, not findings of fact made by a lower court, are reviewable.

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


The clerk of the appellate court schedules on the court calendar the date of the hearing on which each side may present an oral argument. Oral arguments, usually ten to fifteen minutes for each side, help the court understand the issues argued in the brief and persuade the court to rule in favor of the arguing party. During the arguments of appellant and appellee, it is not unusual for the appellate judge to interrupt with questions on particular issues or points of law.

The appellant's argument briefly discusses the facts on which the cause of action is based and traces the history of the case through the lower courts. It includes the legal issues raised by the exceptions taken to the allegedly erroneous rulings of the trial judge. Thereafter, the appellee's counsel presents arguments in favor of affirming the original decision.


An appellate court has broad powers over the scope of its decision and the relief to be granted. After reviewing the controlling issues in an action, it may affirm the decision of the inferior tribunal, modify it, reverse it, or remand the case for a new trial in the lower court pursuant to its order.

When a decision is affirmed, the appellate court accepts the decision of the lower court and rejects the appellant's contention that it was erroneously made. The modification of a decision by an appellate court means that, while it accepts part of the trial court's decision, the appellant was correct that the decision was partly erroneous. The trial court's decision is then modified accordingly.

A reversal of a decision means that the appellate court agrees with the appellant that the decision was erroneously made. The party who lost the case at the trial level becomes the winning party in appellate court.

In some cases, a decision might be reversed but the lawsuit is still unresolved. The appellate court then orders the reversal with the direction that the case be remanded to a lower court for the determination of the issues that remain unsettled.

If a judgment or order is reversed in an intermediate appellate court, the losing party may file an appeal with a superior appellate court for relief, and the appellate process begins again. The decision rendered by a superior appellate court cannot ordinarily be reviewed. In state cases involving issues based on federal statutes or the Constitution, however, an appeal may be brought in the federal court system on those questions that are within its jurisdiction.

further readings

Lynn, Richardson R. 1985. Appellate Litigation. New York: Wiley Law.

Magen, Barbara S. 2003. "Let's twist again: getting reargument and reconsideration on appeal." Pennsylvania Law Weekly 26 (April).

Wood, Jefri, and Diane Sheehey. 1997. Guideline Sentencing: An Outline of Appellate Case Law on Selected Topics. Washington, D.C.: Federal Judicial Center.


Appellate Advocacy; Appellate Court; Federal Courts; Remand.


views updated May 18 2018


Timely resort by an unsuccessful party in a lawsuit or administrative proceeding to an appropriate superior court empowered to review a final decision on the ground that it was based upon an erroneous application of law.

Halbert v. Michigan

For the second time during its 2004 term the U.S. Supreme Court examined the constitutionality of the state of Michigan's discretionary appointment of legal counsel to defendants who have pleaded guilty or no contest to criminal charges. In Kowalski v. Tesmer, __ U.S. __, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004), the Court ruled that criminal attorneys lacked third-party standing to challenge the constitutionality of the Michigan law. The Court concluded, in its 6-3 decision, that indigent defendants were not hindered from challenging the constitutionality of the law themselves. This decision led an indigent defendant to challenge the law in Halbert v. Michigan, __U.S. __, 125 S.Ct. 2582, __ L.Ed.2d __ 2005 WL 1469183 (2005). In this decision the Court ruled that the Michigan law was unconstitutional and that all criminal defendants who pleaded guilty or no contest were entitled to the appointment of legal counsel to file an appeal with the Michigan Court of Appeals.

In the early 1990s, the Michigan Court of Appeals was clogged with approximately 13,000 civil and criminal appeals annually. One-third of criminal appeals came from defendants who had pleaded guilty or no contest. Indigent defendants were entitled to the appointment of an appellate attorney at no cost, yet few of these defendants prevailed on appeal. In response, Michigan voters passed a 1994 constitutional amendment that made the appointment of appellate attorneys discretionary for defendants who had pleaded guilty or no contest. In addition, the amendment changed the legal standing of those who plead guilty-they no longer had an appeal by right. Instead, they had to file an application for leave to appeal, giving the appeals court the discretion to deny the application without full appellate review of the case, including briefing and oral argument. Judges began to exercise discretion in denying the appointment of appellate counsel to file the application, and the Michigan legislature later codified this practice. The Michigan Supreme Court upheld the constitutionality of this law.

Antonio Halbert pleaded no contest to charges that he had sexually assaulted his stepdaughter and another girl. Before the judge accepted his plea, the judge informed Halbert that he would be giving up his ability to claim an appeal as of right and his right to appellate counsel. Halbert stated that he understood the implications of pleading no contest, and the judge accepted the plea and imposed sentences that ran consecutively rather than concurrently. The next day, Halbert submitted a handwritten motion requesting that he be allowed to withdraw his plea. The judge denied the motion. Halbert then made two requests to have the trial court appoint an attorney to help him file his application for leave to appeal to the Michigan Court of Appeals. Both requests were denied, so Halbert filed his own application. The Court of Appeals denied his application in a standard form order. Halbert's application for leave to appeal to the Michigan Supreme Court was also denied, although two dissenting justices argued that he should have been provided appellate counsel.

The U.S. Supreme Court, in a 6-3 decision, ruled that Halbert was entitled to an attorney to help file his application for leave to the Michigan Court of Appeals, but he was not entitled to counsel when filing an application with the Michigan Supreme Court. Justice Ruth Bader Ginsburg, in her majority opinion, based the decision on the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and on two Supreme Court decisions that concerned the right to appellate counsel. In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the Court held that a state is required to appoint counsel for an indigent defendant's "first-tier" appeal as of right. Such appeals typically are heard by intermediate courts of appeal, which adjudicate the cases on the merits and are "error-correcting" courts. In contrast, the Court in Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) ruled that indigent criminal defendants are not entitled to legal representation when they seek discretionary review from an appellate court , which is typically the state supreme court. The Court found that such "second-tier" appeals turn on important legal principles and issues rather than simple error correction. In addition, defendants have already had the benefit of legal counsel from the first-tier appeal, along with a transcript and a brief on the defendant's behalf in the court of appeals.

Justice Ginsburg concluded that despite the fact that the Michigan Court of Appeals had discretion to deny a defendant's leave to appeal, the court was a first-tier court. Ginsburg justified this conclusion by noting that the court of appeals "looked to the merits of the claims made in the application" and therefore had made some evaluation as to whether judicial error had been committed. Second, Justice Ginsburg expressed concern that "indigent defendants pursuing first-tier review in the Court of Appeals are generally ill-equipped to represent themselves." She pointed out that seven out of ten inmates fall into the lowest two out of five levels of literacy and that "many have learning disabilities and mental impairments." The Michigan scheme, which required that an application for leave to appeal be filed within 21 days after the trial court's entry of judgment , could "intimidate the uncounseled." Although the state had a legitimate interest in reducing the workload of the courts, she believed that "providing indigents with appellate counsel will yield applications easier to comprehend." Therefore, Halbert was entitled to legal counsel when filing his application. However, he was not entitled to legal counsel if he was to file an application with the Michigan Supreme Court, as that truly was a second-tier appeal.

Justice Clarence Thomas, in a dissenting opinion joined by Chief Justice William Rehnquist and Justice Antonin Scalia, concluded that the Michigan Court of Appeals, by exercising its discretion, was a second-tier appeals court for defendants who plead guilty or no contest. In addition, Thomas lamented the ruling because he believed that it would divert limited legal resources to defendants who have flimsy arguments and away from defendants who have contested their guilt at trial.

Kowalski v. Tesmer

Indigent criminal defendants are entitled to legal representation. However, the use of public defenders or court-appointed defense counsel has placed financial burdens on state-government budgets and has led some states to impose limitations on their employment in certain types of cases. In 1994, Michigan amended its constitution to provide that defendants who have pleaded guilty are not entitled by right to appeal their cases. Instead, a defendant must petition a court for permission to appeal. Some judges have refused to appoint appellate counsel for these petitions. In 2000, the Michigan state legislature codified this judicial practice by enacting a statute (Mich. Comp. Laws. §770.3a) that prohibited the appointment of appellate attorneys for indigent defendants who plead guilty. Two Michigan appellate attorneys who represented criminal defendants, along with three indigent defendants who had pleaded guilty, filed a federal civil rights lawsuit challenging the constitutionality of the law. The U.S. Supreme Court, in Kowalski v. Tesmer, __ U.S. __, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004), rejected the appeal, ruling that the attorneys lacked third-party standing to bring the lawsuit in the first place.

The federal district court that heard the case agreed that the law was unconstitutional and issued an order requiring Michigan judges to appoint appellate counsel to any indigent defendant who had pleaded guilty. However, the court also dimissed the three criminal defendants from the lawsuit because they had pending state criminal proceedings. Under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), a state criminal defendant cannot assert ancillary challenges to ongoing state criminal proceedings in federal court. Therefore, the two attorneys survived as the plaintiffs in the case.

On appeal, the U.S. Court of Appeals for the Sixth Circuit made two important rulings, finding that the attorneys had standing to bring the lawsuit and that the statute was unconstitutional. The U.S. legal system is an adversarial process, which presumes that parties who file civil lawsuits have a personal stake in the dispute. The Michigan law clearly had an impact on indigent defendants who had pleaded guilty, but they were no longer parties to this lawsuit. Instead, the two attorneys were third parties who asserted that they had a financial stake in the outcome of the lawsuit, as they would lose legal fees because of the new restrictions. The Sixth Circuit agreed with them and ruled on the merits of their arguments concerning legal representation mandated by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Kowalski v. Granholm, 333 F.3d 683 (6th Cir. 2003). Michigan then appealed to the U.S. Supreme Court.

The Supreme Court, in a 6-3 decision, overturned the Sixth Circuit's decision on the standing issue, ruling that the attorneys lacked third-party standing to bring the action on behalf of hypothetical future clients. Chief Justice William Rehnquist, writing for the majority, focused on whether the attorneys had standing to raise the rights of others. In general, the Supreme Court has required parties to assert their own legal rights and interests. Parties with a direct stake in the outcome will challenge government action with "necessary zeal and appropriate presentation." However, Rehnquist acknowledged that the Court had granted third parties standing to raise the interests of others if they could demonstrate that they had a close relationship with the person who possessed the rights in question and that the person's ability to assert these rights directly was hindered in such a way as to require third-party intervention. Therefore, the Michigan case turned on the answers to these two questions.

Chief Justice Rehnquist noted that the two attorneys invoked the attorney-client relationship to show that they had a close relationship with future indigent criminal defendants who would be denied the appointment of an appellate attorney. Rehnquist found this claim unconvincing, as past Supreme Court decisions had required attorneys to have existing attorneyclient relationships. The attorneys in this case had only hypothetical relationships with prospective clients. Rehnquist concluded that this meant that there was "no relationship at all."

The Court was also not persuaded that indigent defendants were hindered from challenging the constitutionality of the law themselves. The two attorneys had argued that criminal defendants did not possess the sophistication to satisfy the procedural and substantive requirements of an appeal. Rehnquist disagreed, noting that a defendant who had pleaded guilty had the right to appeal the denial of appellate counsel to the Michigan appeals court and supreme court, and then to the U.S. Supreme Court. He pointed out Michigan cases where defendants had appealed their denial of counsel . Though an appellate attorney "would be valuable," Rehnquist found that the lack of an attorney was "not the type of hindrance necessary to allow another to assert the indigent defendants' rights." Therefore, the Court dismissed the lawsuit for lack of standing and did not reach the constitutional issues in the case.

Justice Ruth Bader Ginsburg, in a dissenting opinion joined by Justices John Paul Stevens and David Souter, argued that the two attorneys had standing because they had showed a "direct economic loss" from the reduced appellate caseload that the new law would produce. With fewer cases, the two attorneys would not be appointed as often and would suffer a loss of income. In addition, Ginsburg found the "hypothetical" relationship with future clients to be beside the point. The true test was the "character of the relationship between the litigant and the rightholder." In this case, the attorney-client relationship was sufficient, whether or not the attorney currently had a client. Finally, Ginsburg disputed the conclusion that defendants were not hindered from asserting their rights directly. The appellate process is complex, and the timelines mandated by Michigan law for appealing the denial of appellate counsel are short. A defendant who has pleaded guilty still may raise a host of constitutional, jurisdictional, and factual defects on appeal. The Court's decision left indigent defendants who have pleaded guilty "without a viable means to protect their rights."


views updated May 17 2018


The Problem of the Appeal in Jewish Law

Most modern legal systems comprise a number of judicial forums, organized hierarchically. A litigant dissatisfied with a decision in a lower forum thus has the right to appeal that decision in a higher judicial instance, in the hope that the decision will be altered in his favor. This right of appeal stems from the presumption that the lower forum may conceivably have erred in its ruling, and the aspiration for true justice requires that the litigant be given an additional opportunity to have his claims heard.

On the other hand, in Jewish law the existence of an appellate tribunal is by no means self-evident. Admittedly, according to Jewish law a bet din that has erred is duty bound to reexamine its decision and correct it (Sh. Ar. Ḥm 25.1–2), and the litigant is entitled to return to the bet din after receiving its decision and to attempt to convince it that a mistake was made (Sh. Ar. Ḥm 20.1). However, this is clearly not a satisfactory solution. In numerous cases the bet din is not convinced that its decision was mistaken. In such cases the litigant will ascribe its position, rightly or wrongly, to the stubbornness of the dayyanim who were unwilling to amend their ruling.

It has been claimed that the Sanhedrin itself was a quasi instance of appeal. However, it is highly doubtful whether this claim is substantiated by talmudic sources. An examination of classical halakhic literature indicates that it was indeed possible to submit a ruling for the review of a second bet din, but the bet din concerned was not officially constituted for the purpose of adjudicating appeals; rather, it was a regular bet din whose dayyanin were reputed to be of greater expertise than those of the first bet din. This law has its source in the Talmud (Sanhedrin 31b), where such a forum was known as the Bet Va'ad ("Place of Assembly") or the Bet Din ha-Gadol ("High Court"), and it was codified in the Shulḥan Arukh (Ḥm 14.1). However, there are posekim who ruled that this law does not empower the second bet din to reverse or change the original ruling, but merely to express its opinion on its correctness. The power to reverse a ruling resides exclusively with the original bet din (for sources, see E. Shochetman, Seder ha-Din, 446). Moreover, some of the posekim stated that the institution defined as bet din gadol does not exist in our times (see Rema, ad loc). According to this view, there is no possibility of review by another court, even if not under the rubric of an appeal.

Instances of Appellate Review in the Past

It would therefore appear that the only means of establishing a permanent institution charged with appellate review of the rulings of other rabbinical courts (batei din) is by way of a takkanah (see entry on *Takkanah). Indeed, when the Rabbinical Court of Appeals in Jerusalem was constituted, a controversy ensued regarding the need and /or justification for such an institution (to be discussed below). In this context, R. Simḥa Assaf attempted to prove that appellate tribunals had operated in the past in a number of different times and places and that, "Not only did the Torah scholars of those times not see any prohibition in the matter, but they actually affirmed the regulations pertaining to the procedures for filing the appeal" (Assaf, Battei Din, 74–75). However, some of these proofs have been challenged (see Katz, Masoret u-Mashber, (Jerusalem, 1964) p. 160, n. 23. As stated, the accepted view in halakhic literature of recent generations is that there is no room for a forum of appeal, and the precedents adduced by R. Assaf did not persuade many of the opponents of such an institution.

Appellate Tribunals in the 20th Century

The establishment of appellate tribunals during the 20th century came about as the result of extrinsic circumstances, such as competition with external judicial institutions, particularly those of foreign governments. In Morocco, a rabbinical appellate court was established in 1918 as a result of the French government's attempt to regulate the functioning of the Jewish rabbinical courts (see M. Amar et al, Ha-Mishpat ha-Ivri be-Kehillot Morocco (Jerusalem, 1986), 208, 452). However, the most prominent and influential appellate tribunal with respect to Jewish Law is the Rabbinical Court of Appeals of the Chief Rabbinate, established in Jerusalem in 1921. The establishment of such a tribunal was accompanied by stormy controversy among a number of rabbis in Israel and abroad, the main claim of its opponents being that such an institution was an innovation which contradicted traditional halakhah, and as such should be opposed.

Undoubtedly, the Rabbinical Court of Appeals would not have been established had the British rulers not demanded its establishment as a precondition for conferral of jurisdiction to the rabbinical courts in matters of personal status. There were in fact some rabbis who contended that the rule against establishing such an institution was so severe that it justified the waiver of jurisdiction altogether. On the other hand, the founder of the Chief Rabbinate, Rav Kook, chose to accede to the requirement. In his inaugural speech for the Chief Rabbinate he stated that the new tribunal could be established by way of a special enactment of the Torah authorities. Over the years a number of additional justifications were given for the authority of the Rabbinical High Court to hear appeals (see the remarks of Rav Avraham Shapira, 10 pdr, 180; Rav Avraham Sherman, "Mekor ha-Samkhut shel Bet ha-Din ha-Gadol u-Misgeret Samkhuto," in: 3 Shurat ha-Din (1995), 211–220).

Nevertheless, to this day there are dayyanim who refuse, for halakhic reasons, to endorse the existence of the Rabbinical Court of Appeals, and by extension see no need to comply with its rulings, so long as they remain convinced that there was no error made in their original ruling. This manner of conduct led in turn to a number of petitions to the High Court of Justice against the "rebellious" rabbinical courts that refused to comply with rulings of the Rabbinical Court of Appeals. The High Court of Justice ruled that, under Israeli law, the Rabbinical court system is a hierarchy in which the regional rabbinical courts are subordinate to the rulings of the Rabbinical Court of Appeals addressed to it (for a survey of these rulings, see Elon, Jewish Law, 4:1809–1818).

The establishment of a new appellate tribunal necessitated the creation of procedures regarding the manner of filing an appeal and the procedures for its hearing. To date, there have been three versions of the Rabbinical Courts Procedural Regulations (from the years 1953, 1960, 1993). These regulations and related rulings are discussed at length in Sidrei ha-Din (Shochetman, 450–470). It should be emphasized that the establishment of an appellate tribunal produced another innovation in the world of Jewish Law – namely the obligation for the dayyan to present the reasons for his judgment in writing, since it is clear that appellate review by another bet din is impossible without examining the reasons given by the former instance for its judgment (this practice is already found in the "Place of Assembly" discussed above). A system that confers the litigant a right of appeal against a judgment must also obligate its judges to record the reasons for their judgments. Nevertheless, here too there were dayanim who refrained from writing reasoned judgments


M. Elon, ha-Mishpat ha-Ivri (1988), 667–669, 1521–1528; idem, Jewish Law (1994), 824–826, 1809–1818; S. Assaf, Battei Din ve-Sidreihem aḥarei Ḥatimat ha-Talmud (1924), 74–85; J.D. Bleich, "The Appeal Process in the Jewish Legal System," in: Tradition, 28:1 (1993), 94–112; A. Morgenstern, Ha-Rabbanut ha-Rashit le-Ereẓ YisraelYissudah ve-Irgunah (1973), 75–76; A. Radzyner, "Rav Ouziel, Rabbanut Tel-Aviv Yaffo, u-Bet Din ha-Gadol le-IrurimSippur be-Arba Ma'arkhot," in: Bar-Ilan Studies of Law, 21 (2004), 129–243; A. Shochetman, "Ḥovat ha-Hanmaka ba-Mishpat ha-Ivri," in: Shenaton ha-Mishpat ha-Ivri, 6–7 (1979–1980), 319–397; idem, Sidrei ha-Din (1988); idem, "Bet Din ha-Gadol le-IrurimMa'amado ve-Samkhuyotav," in: Koveẓ ha-Ẓiyyonut ha-Datit, 4 (2002), 534–48; Z. Warhaftig, "Ha-Takdim ba-Mishpat ha-Ivri," in: Shenaton ha-Mishpat ha-Ivri, 6–7 (1979–1980), 105–32.

[Amichai Radzyner 2nd ed.]


views updated Jun 11 2018

ap·peal / əˈpēl/ • v. [intr.] 1. make a serious or urgent request, typically to the public: she appealed to Germany for political asylum.2. Law apply to a higher court for a reversal of the decision of a lower court: he said he would appeal against the conviction | [tr.] to appeal the decision. ∎  Baseball (of the defensive team) call on the umpire to rule a strike or out on a completed play. ∎  (appeal to) address oneself to (a principle or quality in someone) in anticipation of a favorable response: I appealed to his sense of justice.3. be attractive or interesting: the topics will appeal to youngsters.• n. 1. a serious or urgent request, typically one made to the public. ∎  an attempt to obtain financial support: a public appeal to raise $120,000. ∎  entreaty: a look of appeal on his face.2. Law an application to a higher court for a decision to be reversed: he has 28 days in which to lodge an appeal | the right of appeal. ∎  an address to a principle or quality in anticipation of a favorable response: an appeal to black pride.3. the quality of being attractive or interesting: the popular appeal of football.DERIVATIVES: ap·peal·er n.


views updated May 29 2018


An appeal is the invocation of the jurisdiction of a higher court to reverse or modify a lower court's decision. Appeal from the decision of a federal district court, for example, is normally taken to a federal court of appeals. In earlier federal practice, an appeal was taken by way of a writ of error; today, the term "appeal" has replaced references to the former writ. In the Supreme Court, "appeal" is a term of art, referring to the Court's obligatory appellate jurisdiction. In this sense, filing an appeal is distinguished from petitioning for a writ of certiorari, which is the method of invoking the Court's discretionary jurisdiction.

In a case coming to the Supreme Court from a state court, appeal is the appropriate remedy when the highest state court has rejected one of two types of claims based on federal law: either the state court has upheld a state law, rejecting the claim that the law violates the federal Constitution or a federal statute or treaty, or it has held invalid a federal statute or treaty. In those two kinds of cases, the Supreme Court is, in theory, obliged to review state court decisions; in all other cases, only the discretionary remedy of certiorari is available. A similarly obligatory review, by way of appeal, is appropriate when a federal court of appeals holds a state statute invalid. However, the overwhelming majority of court of appeals decisions reviewed by the Supreme Court lie within the Court's discretionary review, on writ of certiorari.

Whether a case is or is not an appropriate case for an appeal lies to some extent within the control of counsel, who may be able to cast the case as a challenge to the constitutionality of a state law as applied to particular facts. Yet some cases lie outside counsel's power to characterize; thus, a claim that a valid statute is being applied in a discriminatory manner, in violation of the equal protection clause, is reviewable only on certiorari.

With each passing year the practical distinction between appeal and certiorari has lessened. The Supreme Court often dismisses an appeal "for want of a substantial federal question" under circumstances strongly indicating the Court's determination, on a discretionary basis, that the appeal is not worthy of being heard. Furthermore, the Court has had the power since 1925 to treat improperly filed appeal papers as if they were a petition for certiorari. The same " rule of four " applies to both appeal and certiorari: the vote of four Justices is necessary for a case to be heard. With these factors in mind, commentators have persistently urged Congress to abolish the Supreme Court's appeal jurisdiction entirely, leaving the Court in full discretionary control over the cases it will hear.

Kenneth L. Karst


Stern, Robert L. and Gressman, Eugene 1978 Supreme Court Practice, 5th ed. Chaps. 2–5. Washington, D.C.: Bureau of National Affairs.


views updated May 18 2018

appeal appeal from Philip drunk to Philip sober proverbial saying, implying that an opinion or decision reflects only a passing mood. The original allusion is to Philip, King of Macedon, father of Alexander the Great, who is said to have been the subject of such an appeal.
appeal to Caesar appeal to the highest possible authority, originally with reference to the claim made by the apostle Paul to have his case heard in Rome, which was his right as a Roman citizen, ‘I appeal unto Caesar’ (Acts 25:11).


views updated May 23 2018

appeal XIV. — OF. apeler (mod. appeler) call :- L. appellāre, f. AP- + pell- of pellere drive.
So appeal sb. XIII.

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