Top 10 Issues to Raise on Appeal


In the United States, a defendant who is dissatisfied with the outcome of a legal proceeding may have the right to file an appeal of that decision. These cases are heard by an appellate court whose purpose is to provide fair, consistent, and timely resolutions to appeals in the state of Nebraska.

An appeal is not a new trial. Instead, it’s a formal request to a higher court asking for a review of the lower court’s decision in the original trial. New evidence is not presented during an appeal, and witnesses do not testify on the defendant’s behalf. The appeals process typically involves attorneys and judges and can be long, complicated, and frustrating.

When an individual’s livelihood, freedom, or life is on the line, an appeal is often the last stop in the legal process. Once an appellate court makes a ruling, the case generally ends there. The legal team at Berry Law has the experience to handle cases of such gravity. They can build a plan for your defense based on a solid argument for appeal.

How Do I Know if My Case Can Be Appealed?

Appellate cases require a defendant to prove that an error occurred during the original trial which seriously impacted the outcome of his or her case. Appeals can be filed in civil cases, where either the plaintiff or the defendant may appeal a court’s decision. For criminal cases or those involving the government, only the defendant is able to file an appeal against a lower court’s decision.

Misdemeanor and felony criminal cases involving drug trafficking, larceny and theft, sexual offenses, and murder are among the most common offenses taken to appeals courts. The court of appeals is made up of a panel of three judges, and the individual requesting the appeal is referred to as the appellant.

The appellant’s legal team presents the judges with information in the form of a legal brief, which outlines the claims the defendant is making that gives him or her grounds for appeal. The opposing side, known as the appellee, attempts to illustrate to the judges why the trial court’s previous decision should stand. They will often argue that no error occurred in the original trial or that the error did not significantly impact the outcome of the case.

What Happens During the Appeals Process?

The first step in an appellate case is to file a notice of appeal with proof that legal grounds exist for the appeals request. For example, an attorney may claim that a legal error occurred because the judge misapplied the law or applied the wrong law to a case.

A written brief submitted to the appeals court offers specific facts that support the defendant’s claims that an error occurred. The brief points out the mistakes that warrant a reversal of the trial court’s decision. Preparing a brief requires an experienced attorney who can review the original court records and research relevant case law prior to making an argument for appeal.

Appellate judges typically decide an appeals case based on the brief and court records alone, but in some cases, they may ask for oral arguments as well. Oral arguments are conducted before the panel of judges to give them an opportunity to ask clarifying questions regarding the claims made by the defendant.

During oral arguments, each side is allowed 15 minutes to argue their case for or against appeal. These are highly structured conversations between the panel of judges and the appellant’s legal team regarding the legalities of the case. Briefs and oral arguments should be handled by a seasoned litigator who can argue the case for appeal most effectively.

What Are the Possible Outcomes of an Appellate Case?

The appellate court’s decision will either affirm the trial court’s original ruling, or remand the case back to the trial court for review. In the first scenario, the appellate judges determine that they didn’t find evidence that a legal error affected the outcome of the case and that the original judgment stands.

When the appellate court remands a case back to the trial court, it’s usually accompanied by a ruling that a new trial must be held, that the original decision must be corrected, or that the trial court must reconsider particular facts in the case.

In some rare instances, an appellant’s legal team may file what’s known as a writ of certiorari, which petitions the United States Supreme Court to hear a case that the appellate court has already affirmed. This scenario would apply to cases that are considered unusual in nature, of if the appellate court’s decision could have serious influence over future similar cases. The Supreme Court may or may not decide to hear the case.

What are the Most Common Reasons for Appeal?

Statistics from the U.S. Department of Justice show that nearly two-thirds of all appeals that are reviewed are based on the merits of the case itself. More than half of all appeals uphold or affirm the trial court’s original decision. Just 12 percent of appeals end with the appellate court reversing, remanding, or modifying a component of the trial court’s decision.

The following are the most often cited reasons given by an appellant as grounds for appeal:

Sufficiency of Evidence

Issues regarding the evidence used during a trial are the most common reasons for appeal, especially in regard to the adequacy of that evidence in proving that the defendant was responsible for the charges against them.

The burden is on the prosecution to prove its case beyond a reasonable doubt. There are cases when the prosecution fails to prove its case to this standard, and the jury convicts the defendant anyway because of personal bias or for a number of other reasons. When this occurs, there may be grounds for an appeal based on insufficient evidence.

Jurors are instructed that they cannot convict a defendant when there isn’t compelling evidence to support a guilty verdict. An appellant’s legal team may argue that the evidence was insufficient to establish their client’s guilt, and that the verdict went against the weight of the evidence presented to the jury.

Incorrect Factual Evidence

If evidence was presented to the court at the time of the trial that was not factual in nature, or if new evidence came to light after the trial, an attorney may argue that the outcome of the case was affected due to incorrect information or evidence

Improper Admission or Exclusion of Evidence

During a pre-trial hearing, a judge determines what evidence presented by both parties’ attorneys can and cannot be shared with the jury at trial. Judges sometimes make mistakes when ruling on the admission and exclusion of evidence. Those mistakes can be used as the basis for an appeal.

If evidence was admitted that should not have been heard because it was inadmissible due to a civil rights violation or other matter, that evidence may have unfairly prejudiced the jury against the defendant. Conversely, evidence that should have been admitted and was not could also have an impact on the outcome of a case. For example, testimony from a witness who identified an individual other than the defendant as the person responsible for a crime would be pertinent to the case.

Misuse or Mistake of the Law

If an attorney believes that the law was misapplied or misinterpreted in a case, he or she could argue a mistake of the law. These cases are rare, but they involve an error on a ruling or a misapplication of the law in a way that it was not intended to be applied.

If the mistake is determined to have been a harmless error, the appellate court may rule that the outcome of the case would not have changed had the error not occurred. In that scenario, the trial court’s decision is upheld.

Abuse of Power

In situations where a key decision maker, typically a judge, is accused of abusing his or her judicial power, an appeal may be filed on the grounds of abuse of power. Excessive or inconsistent sentencing on the part of the judge may be argued as an abuse of power, as well as in situations where a judge acted outside of his or her jurisdiction.

Other examples include judicial misconduct such as a judge accepting bribes or using his or her office to seek special treatment for family and friends.

Procedural Mistakes

The judicial process is clearly laid out to help ensure fair and consistent practices from courtroom to courtroom. When an irregularity occurs, it could be grounds to file an appeal. An example would be a judge’s failure to hold a pre-trial hearing to hear evidence before a trial begins.

The jury selection process can also be rife with errors. If jurors were selected who were not qualified to serve, or if the opposing party’s lawyer unlawfully discriminated against potential jurors based on their race, gender, religion, or other protected status, an attorney may file an appeal. Making errors or issuing incorrect instructions regarding the law to the trial jury may also result in an appeal.

Constitutional Rights Violations

When physical evidence is obtained in violation of a person’s Fourth Amendment right to be free from illegal search and seizure, an appellant may have a case for an appeal. Guns and other weapons, drugs, drug paraphernalia, DNA, cell phones and other property are subject to laws that govern searches and warrants. If law enforcement violates the parameters of the law, any physical evidence discovered may be thrown out, or the case may be dismissed altogether.

Similarly, an appellant may argue that an appeal is necessary on the grounds of false arrest. False arrest occurs when an arresting officer doesn’t have the proper authority to arrest a defendant, either because they had no probable cause to do so, or because they arrested the defendant without an arrest warrant or by complying with the appropriate arrest warrant exceptions.

Other issues of Constitutionality may arise in relation to police lineups or photo identification procedures or in regard to statements or confessions that were obtained in such a way that they violated a defendant’s Miranda rights.

Sixth Amendment violations, including a delay in trial caused by the court or prosecutor, can also be grounds for an appeal.

Jury Misconduct

Members of a jury must agree to adhere to the laws that ensure a defendant a fair trial. If a juror is found to have engaged in inappropriate or illegal misconduct or if their behavior compromised the defendant’s right to a fair trial, a case may be appealed.

Some examples of such conduct include:

  • Refusing to deliberate a case in order to reach a verdict
  • Researching the case beyond the admitted evidence presented in court while the trial is ongoing
  • Purposely concealing relevant information about themselves which could affect their ability to be an impartial juror

Prosecutorial Misconduct

An appellate court may review cases if there is evidence that the prosecutor in the case used unfair or unlawful tactics, such as withholding key evidence or evidence that worked in the favor of the defendant in order to secure a particular verdict.

Other examples of prosecutorial misconduct include attempts to persuade a jury or court using improper methods like commenting on evidence during the trial that has already been ruled inadmissible, purposely misstating the law or evidence, or appealing to a jury’s passions or prejudices.

The appellate court may rule that these actions were so prejudicial that the judge in the case couldn’t correct the situation by either instructing the jury to disregard the action or by striking the evidence or the prosecutor’s statements from the record.

In any appeal alleging misconduct, the appellant must prove that misconduct not only occurred, but that the misconduct in question affected the outcome of the trial.

Ineffective Assistance of Counsel

Defendants are guaranteed the right to legal representation. In some situations, a trial attorney may be deemed to have been so incompetent in his or her duty to the defendant that it interfered with that person’s Sixth Amendment rights to a fair trial.

If an appellate court agrees that the attorney in question did not put on a sufficient defense, the defendant may be entitled to a new trial. The must prove the following:

  • That the attorney’s conduct was lacking because he or she failed to reasonably represent the defendant under an objective standard of professional norms.
  • The attorney’s incompetence resulted in prejudice against the defendant during his or her trial.

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