Chapter 11 - The Right to Appeal and the Appellate Process

Abstract

An appeal is a formal request to have a higher court review and change a procedural step, verdict, or sentence of the trial court. Trial courts hear cases for the first time, and handle most criminal cases, from first appearance to sentencing. They do not create precedent but rather focus on disputes about the facts. Trial courts are largely triers of fact. The United States uses the appellate courts as a corrective mechanism within the judicial system. Appellate courts protect the rights of people in the nation. They have the powers of judicial review, judicial law-making, and the error-correcting function. Standing is the right to initiate a legal action. Usually only the defendant has standing for the first appeal, but after that whoever lost at the previous appeal has standing.4. Tell what it means to preserve an issue and whose responsibility it is. To preserve an issue for appeal means that the attorney must challenge during pre-trial or trial the constitutionality of that part of the case. With regard to preparing for appeal, the defense’s main task is to preserve issues for appeal. If a defendant decides to appeal, he or she will become the “appellant,” or “petitioner,” “plaintiff,” or “moving party.” The state or district jurisdiction is the “respondent,” or “appellee,” because it responds to the accusation in the appeal and defends the trial-court procedures and the constitutionality of the law. This initial argument is presented to the appellate court in a written petition, which asks the court to accept the appeal and review the case. The petition must distill the trial case to its essential constitutional issues. The court can grant or reject a petition. A brief is a party’s written description of the facts in the case, the law that applies, and the party’s argument about the issues being appealed. The goal of briefs and oral arguments is to persuade the court to either correct or sustain the trial court’s work. Usually, there are three layers of briefs: the appellant brief, the response brief, and the reply brief. Two fundamental principles shape appellate court decision-making, judicial restraint, and judicial review: conservation and judicial restraint. The court tends to “conserve” previous decisions. There is an institutional preference to avoid changing rulings. Regarding judicial restraint, the avoidance canon compels courts to avoid hearing appeals that challenge the constitutionality of a law and when they do, to try to avoid ruling it unconstitutional. The effect of judicial law is immense. Supreme Court decisions alter how police and trial courts perform their duties, how lawyers prepare cases, and what happens on appeal. Their decisions alter the lives of millions of people accused of crime and the prison system into which hundreds of thousands are sent every year. Rights for people accused of crime were greatly expanded during the Warren Court (1953–1969), when Chief Justice Earl Warren led the due-process revolution.