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Gabrielle Tetreault

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Criminal Appeals



  • Criminal Appeal

Once the trial is over, and you have been found guilty it is then time to look back at the process to determine if the process was fair.   Any number of legal errors may have occurred during or before trial and these errors can be attacked in the Appellate Courts. A successful appeal can mean that the conviction is overturned, you might get a reduction in sentence or other penalties, or you may be granted a new trial.  If you are granted a new trial, evidence that was erroneously introduced at first trial can be suppressed.


Appeals are based upon the "record" in the case as it occurred in the trial court, and (usually) no new evidence is presented to the Appellate Justices. Appeals tend to be technical and time consuming, but can reap great rewards for those erroneously convicted. California law allows the setting of bail while an appeal is pending, so a person facing incarceration may be free while the appeal is heard




An appeal is not a new trial. The purpose of an appeal is to review the trial proceedings to see if they followed the law.  An appeal is limited to the matters that were heard at trial.  This not an opportunity to "re-try" the case. The transcripts include: (1) the papers in the trial court files; and (2) a court reporter's word-for-word record of what happened in the courtroom. The Court of Appeal cannot consider facts outside of the transcripts. It hears no witnesses and takes no new evidence.


The Court of Appeal has no power to decide whether you are guilty or innocent, or whether a certain witness was lying, or what a piece of evidence proves. It has no power to say what sentence you should get. Decisions like those are only for the jury or trial judge, and the Court of Appeal cannot change them.  The Court of Appeal deals with legal questions. It decides whether the trial court proceedings followed the law. If the Court of Appeal finds that the proceedings were conducted correctly, the judgment is "affirmed," and your conviction and sentence will not change.


If the Court of Appeal finds an "important" mistake was made in the trial court, your case will probably be "reversed" and sent back to the trial court for a new trial, a new sentencing, or some other proceeding to correct the mistake. Some mistakes can be corrected by the Court of Appeal itself, without sending the case back.  Sometimes, the court of appeals finds that mistakes were made but they are not "important" enough to reverse your conviction or give you a new trial.




The usual steps in an appeal include:


The trial court clerk and reporter began preparing the transcripts in your case after the notice of appeal was filed. This process alone can take anywhere from 1-6 months.


After the transcripts are filed, your attorney will study them and decide what issues should be presented to the Court of Appeal. These issues will be written into the appellant's opening brief.  The brief will normally have several parts. It will describe the trial court procedures in a section called "Statement of the Case." Then it will describe the evidence in a section called "Statement of Facts." The next part of the brief will be the "argument." In this part your lawyer will show how the trial court proceedings did not follow the law, and will argue why you should be given a new trial, another sentence, or some other relief.


After the appellant's opening brief is filed, the prosecution will file the prosecution's response called  "respondent's brief." In it, the prosecutor will argue that no mistakes were made in the trial court; or any mistakes that were made were not important; or a particular issue cannot be raised on appeal; or some other argument.


Next would be the appellant reply brief, in which your attorney will have a chance to answer the arguments made in the prosecution's brief. The appellant's reply brief is optional and will be filed only if your lawyer thinks it will help.


The next step would be oral argument in front of the appeals court.. In oral argument, the lawyers for both sides go to court and argue in person. It usually takes only a few minutes. You will not be there.  Oral argument is not held in every case. Your lawyer will ask for it only if he or she believes something needs to be said that was not already said in the briefs.


Three judges of the Court of Appeal will decide your case. They will read the briefs, look at the transcripts, and hear oral argument. Then they will vote. It takes at least two judges voting the same way to reach a decision. One of the judges writes the opinion. One or both of the other judges may write separate opinions if they disagree with something the first judge said.


The Court of Appeal will give its decision in a written "opinion." The opinion explains why the court decided each issue as it did.  The opinion will be filed sometime after oral argument is held or waived. It may be only a few days later, or as much as three months later.


If the decision is against you in some way, your lawyer may decide to file a petition for rehearing asking the Court of Appeal to reconsider. The prosecution may also file a petition for rehearing if the decision is against the prosecution. The petitions are due 15 days after the opinion is filed. Very few are granted.


Another possible step to take, if you lose in the Court of Appeal, is to file a petition for review. In it, your lawyer would ask the California Supreme Court to reach its own decision on one or more of the issues raised in the Court of Appeal. Your lawyer will file the petition if he or she believes there is a reasonable chance of having it granted. The prosecution may also petition for review if the prosecution has lost in the Court of Appeal.


The petition must be filed no earlier than 30 days, and no later than 40 days, after the Court of Appeal's opinion is filed. If the petition is denied, the decision of the Court of Appeal is left standing and becomes "final." Very few petitions are actually granted.


Many appeals take about a year from the time the notice of appeal is filed until the time the decision of the Court of Appeal becomes final. Of course, your case may be shorter or longer, depending on how long the transcripts are, how many issues are raised, and many other things.



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