Understanding Federal Criminal Appeals: A Primer for Non-Lawyers

Most people have a basic idea of what a trial is. They have seen it in movies or TV shows, or have read about it in books or newspaper articles. They know, for example, that in a trial, lawyers question witnesses, raise objections, and make arguments to the jury. But what happens in an appeal? Because appeals are so rarely depicted in media, the average non-lawyer often has little knowledge of the appeals process. Our clients, for example, are often surprised to hear that in an appeal, the lawyer does not have the opportunity to present new evidence, and that appellate judges often decide appeals without even hearing oral argument.

While there is a great deal of information on the internet about appeals today, not all of it is easily understandable. Moreover, because each State, as well as the federal government, has its own appellate system, information about the appellate process in a State, such as the Commonwealth of Virginia, may not be applicable to the appellate process in federal court, such as the United States Court of Appeals for the Fourth Circuit.

This article is written for the non-lawyer. Its aim is to help the average person understand what happens in a criminal appeal in federal court. If you are researching federal criminal appeals for yourself or for someone close to you, we hope this information will be of use.

Basics of federal criminal appeals

An appeal is the legal process through which a criminal conviction and sentence is reviewed by a higher court. Although there is no constitutional right to an appeal in criminal cases, every U.S. State and the federal government has, by statute, established a system of appeals courts to review the judgments of lower courts. The job of the appeals courts is to ensure that the trial courts correctly apply the law.

In the federal system, there are two tiers of appeals courts, the United States Courts of Appeals, which review judgments from district courts in their respective circuits, and the Supreme Court of the United States, which reviews judgments from the federal courts of appeals, as well as from the highest appeals courts of the States.

This article focuses on appeals from district courts to courts of appeals.  This is because the United States Supreme Court hears only about 80 to 100 cases per year, and it is unlikely that the average criminal defendant will ever have his or her case reviewed by the Supreme Court.  As a practical matter, the court of appeals is the only court which can correct errors in a defendant’s trial or sentencing. Therefore, it is critical that any errors be raised on the first appeal to a court of appeals.

Federal appeals courts

There are thirteen different courts of appeals in the federal system.  They are the United States Court of Appeals for the First through Eleventh Circuits, the United States Court of Appeals for the D.C. Circuit, and the United States Court of Appeals for the Federal Circuit. A federal court of appeals is sometimes simply referred to by the circuit it belongs to. For example, we call the United States Court of Appeals for the Fourth Circuit simply “the Fourth Circuit.”

Every circuit except the Federal Circuit oversees a geographic region of the United States.  For example, the Fourth Circuit hears appeals from federal district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina. The D.C. Circuit hears appeals from the federal district court in the District of Columbia. The Federal Circuit is a specialized appeals court that only hears certain types of cases, such as claims against the government and trademark and patent claims. The Federal Circuit plays no role in criminal appeals.

Although federal law is mostly uniform across the circuits, and all federal courts of appeals apply the same Federal Rules of Appellate Procedure, there are occasional disagreements between the various circuits in the interpretation of federal law. Disagreements between courts of appeals on important issues of law (called circuit splits) are one of the most common reasons that the Supreme Court may decide to review a case.

What happens in a federal criminal appeal?

In the federal system, a defendant must wait until the final judgment of conviction before he or she may begin the appeals process. The federal courts usually will not hear “interlocutory” appeals—or appeals filed before final judgment.

The process of appealing a criminal case begins with the defendant filing a notice of appeal, which must be done within 14 days of the judgment. Although this may seem like a minor formality, the timely filing of a notice of appeal is an essential step.  Courts have denied defendants the opportunity to appeal their convictions where the notice of appeal was filed late.

After the notice of appeal has been filed, the Court of Appeals will typically enter an order establishing the schedule for filing briefs. The party appealing the case is responsible for obtaining the necessary transcripts of proceedings, and assembling the “record” on appeal.  This includes items such as any relevant motions filed in the case, transcripts of relevant proceedings, and trial exhibits.  Counsel for the appellant typically must coordinate with the prosecutors handling the appeal on what should be included in the record.

The parties will then submit briefs, which is the most important document in an appeal.  The attorneys for the parties must make all of their arguments for affirming or reversing a judgment in the brief. It is critical that these arguments be presented clearly and completely, because federal appeals judges will refuse to consider arguments that are not in the briefs.

The court of appeals usually divides its judges into “panels” of three judges to decide cases. The panel assigned to your case will read the briefs, review the record, and decide the case.  The majority of criminal appeals in federal courts are decided “on the briefs,” meaning without an oral argument. On occasion, a panel may set a case for oral argument. Although having your case set for oral argument is no guarantee of success, federal courts typically do not reverse criminal convictions without oral argument.

At the end of this process, the court of appeals issues a written decision.  The decision is usually accompanied by a detailed opinion explaining the outcome. The opinion will usually recount the arguments made by the parties, the facts of the case, and explain why one party won or lost. Sometimes, the court of appeals may choose to issue a shorter, per curiam opinion that simply affirms or reverses a case without discussion.

How long does a federal criminal appeal take? 

Appeals in the federal criminal system can take a long time.  The length of an appeal can also vary from circuit to circuit. In the Fourth Circuit, it takes around nine months to a year from the time a notice of appeal is filed before it is finally resolved.  In other circuits, it can take longer. Of course, if a case is complicated or involves a very large record, you can expect the appeal to take longer than average.

What are the possible outcomes of an appeal? 

At the broadest level, a court of appeals will either affirm or reverse the trial court’s judgment. If the judgment is affirmed, it means that the court of appeals thinks the trial court did not commit any error, or, if it did commit any error, that such error was not serious enough to have affected the outcome. If the judgment is affirmed, then nothing further happens and the case is simply sent back for the trial court to enforce the judgment.

If the judgment is reversed, the court of appeals will typically contain additional instructions.  For example, the court of appeals may instruct the trial court to dismiss the charges, to hold a new trial, to set aside a portion of a fine, or to re-sentence the defendant. The exact instruction will depend on the nature of the arguments raised on appeal, and the specific remedies sought by the defendant.

Keep in mind that reversals in federal criminal cases are extremely rare. Statistics show that reversal rates in federal courts of appeals are in the single digits. In other words, there is an over 90% chance that a given criminal appeal will be affirmed. Because of this, a responsible appellate attorney will almost never promise a reversal even when he or she feels confident that the case contains good issues for an appeal.

What can be argued on an appeal? 

As you can probably guess by now, an appeal is not the same as a new trial. An appeal is not a forum for deciding whether a defendant is innocent or guilty. Rather, the court of appeals is focused on whether the trial court correctly applied the law. Therefore, it would be foolish to argue the same things to a court of appeals that one would argue to a jury.

Deciding what arguments to raise on appeal is a complex process. A large part of makes an attorney a successful appellate advocate is his or her ability to select the right issues for an appeal. There are a number of important considerations that go into selecting the right issues to argue on an appeal. In generally, an appeals attorney will want to select a few of the most important ones and focus on those, instead of employing a “shotgun” approach and trying to argue every issue imaginable.

Some of the important considerations for an appeals attorney selecting issues for appeal include:

  • Standard of review. Standard of review refers to how a court of appeals will treat the trial court’s decision. It can be de novo, clear error, or abuse of discretion. It is a highly technical area, but generally, it is easier to get reversal on issues with a de novo standard of review.
  • Error preservation. Error preservation refers to whether the appealing party properly objected to the error in the trial court, and thereby “preserved” the issue for an appeal. One of the many reasons why trial lawyers make so many objections, even when the trial judge is clearly going to rule against them, is to make sure that the trial court’s rulings can be later reviewed by the court of appeals.
  • Prejudice. In order to win reversal on appeal, the appellant must also demonstrate that the trial court’s error likely impacted the outcome of the trial, to the detriment of the appellant.  This is also called the “harmless error” doctrine.

What can I do if the court of appeals affirms the judgment?

If the judgment is affirmed, your attorney can ask for the court of appeals to “rehear” your case. This can involve either the same panel of three judges, or by all of the judges on the court. These two options are respectively referred to as “panel rehearing” and “rehearing en banc.” Typically, a rehearing en banc does not happen unless the case involves an exceptionally important issue. A petition for rehearing must be filed with 14 days of the judgment upholding the conviction.

If rehearing is not sought, or if it is denied, the next option is to file a “petition for a writ of certiorari,” more commonly called a “cert petition.”  This is a fancy name for a request asking the United States Supreme Court to consider the case.  Cert petitions are granted very rarely.  The Supreme Court most commonly grant cert (agrees to consider a case) where there is a disagreement or “split” between two or more federal courts of appeals on an issue, or where the case involves an extraordinarily important issue of law.

Finally, if the Supreme Court declines to hear the case, or if the Supreme Court upholds the conviction, there is the option for filing a “motion to vacate the conviction” under 28 U.S.C. § 2255.  This is often also referred to as a “habeas petition.”

How do I hire the best attorney for an appeal? 

Reversals in federal criminal appeals are rare. Still, a good attorney can make an important difference in the outcome of an appeal. Selecting the right arguments, and presenting those arguments in a clear and effective manner, is critical for maximizing your chance of obtaining a reversal on appeal. If you are thinking about hiring an attorney to represent you or someone else in a federal criminal appeal, you may want to read our article about selecting the best attorney to represent you in a federal criminal case.