Aggressive Advocacy for the Accused
Issues to Consider in Criminal Appeals
When an appeal of a case is reviewed by a higher court, the issues presented to be reviewed will be strictly limited to the record in the trial court. There are generally four things to consider when seeking to litigate an appeal.
An appellate court will only review a case within the confines of the assembled record from the trial court. The record on appeal will consist of the original papers and exhibits on file, the transcript of the proceedings, and a certified copy of the docket entries prepared by the clerk of the lower court.
Some clients believe that anything can be put in the records to be reviewed by the appeals courts, but that is not the case. For example, facts discovered during the pre-trial phase but that were not put into evidence may not be considered.
In some instances, the record for the appeal may have to be expanded. For example, if there is newly discovered evidence, or if there is a claim that the person’s trial attorney was ineffective thereby denying him ‘effective assistance of counsel’, there may be merits for litigating a new trial motion. The merits of a new trial motion would be raised before the trial judge, who would then make the determination if there was error and could grant a new trial. If the judge denies the new trial motion, then that denial may also be appealed. The appeal from the denial of the motion for new trial is then consolidated with the person’s direct appeal for review by the appellate court.
The Issues Preserved:
The appellate courts will review all issues that were ‘preserved’ or objected to during the course of the trial proceedings. These issues may have arisen in the context of a denial of a motion to suppress, or objections made during the case of the trial.
Unpreserved issues or other claims of error, however, may still be reviewed, but under a different standard, if they create “a substantial risk of miscarriage of justice.” In matters involving First Degree Murder convictions, however, unpreserved issues will be reviewed by the standard of “a substantial likelihood of a miscarriage of justice.”
Standards of Review:
The chances of success on an appeal can often depend on the potential claims of error in the record, and therefore the corresponding standard of review that is to be applied.
For example, if the issue contested on appeal involves a ruling of law, the appellate courts will subject its analysis to a broad review. Conversely, if the issue contested involves a factual finding, the review will be subject to a “clearly erroneous” standard; or if a ruling that was made in the discretion of the trial court, it can only be challenged for an “abuse of discretion.”
Additionally, the error by the trial court must be demonstrated to be “prejudicial” as opposed to “harmless”. Evidentiary rulings that are “erroneous” are many times considered ‘harmless’ because the evidence is either overwhelming or cumulative in light of the other evidence in the case.
Strength of Legal Positions:
In the end, the success of an appeal rests on the law as it can be applied to the assembled record, and the appellate lawyer must be able to advocate that the lower court mistakenly applied the law.
In this regard, the merits and strengths of a defendant’s appeal can be additionally attributed to the appellate lawyer himself. In other words, his ability to accurately review the record and identify the legal issues; his legal research skills and ability to argue the issues in favor of his client’s position; and of course, his writing and oral advocacy skills.
Boston Criminal Appeals Lawyer Lefteris K. Travayiakis has experience in Massachusetts Criminal Appeals and is available 24/7 for consultation.
To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Appeals Lawyer, or call 617-325-9500.
- The Record on Appeal
- The Issues Preserved
- Standards of Review
- Strength of Legal Positions
An appellate court will only review a case within the confines of the assembled record from the trial court. The record on appeal will consist of the original papers and exhibits on file, the transcript of the proceedings, and a certified copy of the docket entries prepared by the clerk of the lower court.
Some clients believe that anything can be put in the records to be reviewed by the appeals courts, but that is not the case. For example, facts discovered during the pre-trial phase but that were not put into evidence may not be considered.
In some instances, the record for the appeal may have to be expanded. For example, if there is newly discovered evidence, or if there is a claim that the person’s trial attorney was ineffective thereby denying him ‘effective assistance of counsel’, there may be merits for litigating a new trial motion. The merits of a new trial motion would be raised before the trial judge, who would then make the determination if there was error and could grant a new trial. If the judge denies the new trial motion, then that denial may also be appealed. The appeal from the denial of the motion for new trial is then consolidated with the person’s direct appeal for review by the appellate court.
The Issues Preserved:
The appellate courts will review all issues that were ‘preserved’ or objected to during the course of the trial proceedings. These issues may have arisen in the context of a denial of a motion to suppress, or objections made during the case of the trial.
Unpreserved issues or other claims of error, however, may still be reviewed, but under a different standard, if they create “a substantial risk of miscarriage of justice.” In matters involving First Degree Murder convictions, however, unpreserved issues will be reviewed by the standard of “a substantial likelihood of a miscarriage of justice.”
Standards of Review:
The chances of success on an appeal can often depend on the potential claims of error in the record, and therefore the corresponding standard of review that is to be applied.
For example, if the issue contested on appeal involves a ruling of law, the appellate courts will subject its analysis to a broad review. Conversely, if the issue contested involves a factual finding, the review will be subject to a “clearly erroneous” standard; or if a ruling that was made in the discretion of the trial court, it can only be challenged for an “abuse of discretion.”
Additionally, the error by the trial court must be demonstrated to be “prejudicial” as opposed to “harmless”. Evidentiary rulings that are “erroneous” are many times considered ‘harmless’ because the evidence is either overwhelming or cumulative in light of the other evidence in the case.
Strength of Legal Positions:
In the end, the success of an appeal rests on the law as it can be applied to the assembled record, and the appellate lawyer must be able to advocate that the lower court mistakenly applied the law.
In this regard, the merits and strengths of a defendant’s appeal can be additionally attributed to the appellate lawyer himself. In other words, his ability to accurately review the record and identify the legal issues; his legal research skills and ability to argue the issues in favor of his client’s position; and of course, his writing and oral advocacy skills.
Boston Criminal Appeals Lawyer Lefteris K. Travayiakis has experience in Massachusetts Criminal Appeals and is available 24/7 for consultation.
To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Appeals Lawyer, or call 617-325-9500.
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