How To Appeal A Criminal Conviction

How To Appeal A Criminal ConvictionAppeals from criminal convictions are handled on the federal level by a specific set of laws and on state-or-lower levels by state laws, statutes and codes. This article concerns itself with appeals from criminal convictions in state courts. If you are convicted of a crime in a state court, you commonly have the right to appeal the conviction to an appellate court. An appeal is not a new trial and does not involve new evidence or testimony; rather, an appeal is a limited review of a conviction on one or more grounds to see whether there was some error or other act/omission that significantly “prejudiced” (harmfully affected) your rights.

The grounds for appeal typically include such issues as: lack of probable cause for detaining or arresting you; lack of a proper warrant or lack of proper exception to the warrant requirement; illegal search and seizure; insufficient evidence; improper admission of evidence; improper exclusion of evidence; prosecutorial misconduct; ineffective assistance of counsel; jury misconduct; errors in juror instructions; and errors in sentencing. If you lose an appeal, then the appellate court will uphold your conviction. If you win an appeal, the appellate court will typically: reverse the conviction, which can mean that the charges against you are dismissed and you are free; grant a new trial, which means you will be tried again in the lower trial court on the same charge(s); remand your case to the lower trial court to correct its errors.

How, then, do you appeal a criminal conviction?

First, you should consult/obtain the services of an attorney who is licensed in the state of your conviction and who specializes in criminal appeals. Some individuals conduct their own appeals but the stakes can obviously be very high and the rules can be complicated, so the wisest move is consulting/obtaining the services of a specialist. If you cannot afford an attorney (according to state standards), you may have an attorney appointed to pursue the appeal for you or find a lawyer through state bar programs established for just that purpose.

Secondly, with your lawyer’s assistance, you (the Appellant) will file a Notice of Appeal with a time limit set by the state. Time limits are typically very strict, though there are a few exceptions. If you do not file the Notice of Appeal within the time limit and/or do not meet one of the few exceptions outlined by state law, your whole appeal is jeopardized.

Third, in some instances you will be required to file additional documents. For example, California requires the additional filing of a Certificate of Probable Cause showing reasonable constitutional, jurisdictional and/or other grounds for the appeal in cases of adult felony convictions involving circumstances such as a guilty plea or search and seizure issues. Requirements differ from state to state but the point here is that there may be additional required documents according to your state law.

Fourth, if need be, you can apply to be released on bail during your appeal, arguing that: you are unlikely to flee during the appeal; you do not pose a danger to another person or to the community; you are appealing a valid issue that is likely to cause a reversal of your conviction if your appeal is successful.

Fifth, the record, including a transcript, is prepared. This record usually includes: the court reporter’s typed transcript of everything that was said during the lower court’s proceedings in your case; a compilation of all other materials in the court’s file, including the pleadings, exhibits, court minutes, reports and other documents. The appellate court requires a complete record so it can adequately review the lower court proceedings. Your attorney will also have the opportunity to review and use the record for your appeal. If you or your lawyer notice that something relevant to your case is missing from the record, there are state procedures for requesting its inclusion and review.

Sixth, your appellate attorney will sometimes consult with your trial attorney to obtain a greater understanding of the lower court proceedings.

Seventh, you will assist your attorney in preparing and submitting a “brief” – a written explanation of why the appellate court should give you relief from the conviction. Though called a brief, this document is often lengthy and includes a summary of the facts, legal arguments and supporting rules, cases and statutes. The state laws/rules governing briefs are usually very demanding and complex and deviation from them can harm or even kill your appeal, so you and your attorney must take great care to comply with those laws/rules. In response to your brief, the person/institution arguing against your appeal (usually the criminal prosecutor) will file a “Respondent’s” brief, arguing against the issues you’ve raised.

Eighth, you and your lawyer will review the respondent’s brief and reply by writing and submitting a Reply Brief, countering the Respondent’s arguments. At this point, you are not allowed to raise new arguments; rather, you are confined to rebutting arguments in the Respondent’s brief.

Ninth, your attorney may be allowed Oral Argument, in which he/she stresses the important points in your brief(s) and answers any of the judge(s) questions.

Tenth, if the Appellate Court denies your appeal or otherwise issues a ruling unfavorable to you, you may sometimes ask that court to reconsider/rehear its decision, or ask an even higher court to review that appellate court’s decision, or even appeal to a higher court.


DON’T be intimidated by the process or the people.

DO consult/obtain the services of an attorney who is licensed in the state of your conviction and who specializes in criminal appeals.

DO, with your lawyer’s assistance, file a Notice of Appeal within the time limit set by your state.

DO file any additional required documents with or after your Notice of Appeal.

DO apply to be released on bail during your appeal, if needed.

DO obtain and review the record, including the transcript and all other materials pertinent to your case.

DO request the inclusion in the record of any items pertinent to your appeal but absent from the record.

DO understand that your appellate attorney might consult with your trial attorney.

DO assist your attorney in preparing and submitting an Appellant’s Brief according to the laws/rules governing briefs and their timely submissions.

DO review the Respondent’s Brief.

DO assist your attorney in preparing and submitting an Appellant’s Reply Brief to answer any points raised by the Respondent’s Brief.

DO understand that your attorney may be allowed Oral Argument, in which he/she stresses the important points in your brief(s) and answers any of the judge(s) questions.

DO understand that an unfavorable ruling by the Appellate Court might be reconsidered, reheard, reviewed or even appealed to a higher court, depending on your state’s laws.

Kathy Catanzarite

[Note from This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither, or any of its affiliates, shall have any liability stemming from this article.]