The federal appellate process is not easy to navigate on your own. There are strict filing deadlines and formatting requirements that can make it impossible for novices to stand a chance in obtaining appellate relief. The decades of work that go into researching the contours of a law by the examination of court decisions and the time it takes to engineer winning arguments create a steep learning curve. Therefore, when you file an appeal in the federal courts, you want only the most active appellate defense attorneys on your case.

Preparing for a Federal Appeal

Preparation for a federal appeal begins at the trial court level. Any errors made in this court must be preserved with enough force for the appellate courts to conclude that relief should have been granted. Therefore, the appeals process is an extension of the defense legal work that was done below. On a direct appeal, the record is closed. You can’t add new evidence, new testimony, or bring up new claims. You can improve your claims by adding additional perspectives, arguments, or authorities.

If you want to bring up new claims, you have to file for a writ of habeas corpus. This may also lead to a direct appeal in the appellate courts of your circuit in rare cases. For the most part, direct appeals deal with any issue that made the trial or prosecution unfair, issues that were already presented to the trial judge. Because these claims were almost always addressed thoroughly by the lower courts, the statistical probability of obtaining relief in the federal appellate courts is less than 6 percent.

Therefore, an attorney will focus on presentation and choosing the strongest claims instead of chasing every error. If the court ruled against the defendant in the court below, the appellate defense attorney has to consider why and adjust his arguments accordingly. In many cases, it could be a misunderstanding, which makes clarity and the concise use of wording essential to a winning appellate brief.

Overview of the Federal Appellate Process

Notice of Appeal

In all cases, the appeal is initiated with the filing of a notice of appeal in the U.S. District Court where your trial was held. This simple document contains just a paragraph of double-spaced text that recites the entry of a judgment order, the date of entry, the judge, the court, case number, and parties. The notice of appeal may be due in just 10 days after entry of the judgment order. For this reason, you should advise your trial counsel to file the notice while you are seeking appellate counsel.

Briefing the Merits

Once the case is docketed, the defendant will receive notice to file his appellant brief within 45 days. The appellant principal brief is the main focal point of an appeal. This brief should contain a citation to legal authorities, the essential facts of the case, the pertinent portions of the record, and the correct scope and standards of review. This document must also contain meticulous indexes that layout where each authority is cited in the brief and where particular arguments or facts can be found in the record below and portions attached.

The prosecutor’s office will then have 30 days to file a response. They may ask for an extension by citing a heavy caseload or other reasons. In their brief, they may try to evade the merits of the claims even if you have a strong winning claim. They are trying to build a diversion to confuse the appellate court away from the issues in dispute. Although these tactics can be punished with a motion for sanctions, the appellate courts tend to favor the government attorneys, whom, as a result, act with a callousness of being above the law.

At the end of the day, the courts and prison system are business partners and have conflicts of interest. And the briefs are merely public records that can later be used to expose injustices and demand accountability. For this reason, the appellees (prosecutor’s office) may try to play stupid even when you have rock-solid claims on appeal. Their ignorance creates an excuse for their wanton disregard for your rights if they can play dumb and ignore your claims. Hiring an experienced appellate attorney who knows how things really work is the only way to stand a chance in the federal appellate courts.

There is often confusion about federal criminal appeals. It’s not just clients that have questions, some attorneys find the appeal process for federal crimes somewhat shrouded in mystery. There is a distinct possibility that the lack of clarity concerning federal criminal appeals is by design. While there are aspects of the process that are quite public, such as oral arguments, many elements are designed to be private.

Is evidence reheard in a federal criminal appeal?

One of the aspects of a federal criminal appeal that’s often misunderstood is what actually happens during the appeal process. For instance, some people are under the impression that evidence will be reheard during the appeal. This is actually a misconception because a federal criminal appeal is not an opportunity to re-open and present the facts of the case again. In fact, it’s quite the opposite because there are no similarities between the trial and the appeal.

A federal criminal appeal offers a chance to attack the order of the court on a legal ground. This can in fact be more than one legal ground and it’s usually involving the order of a district court. Another area of confusion is related to the logistics of a federal criminal appeal. The reality is that most of the appeals process occurs in writing. It essentially involves filing of briefs by attorneys on both sides to communicate and respond to legal errors that have allegedly taken place during the district court proceeding.

It’s worth noting that appellate courts do not have juries, witness stands or official court reporters like district courts. This dynamic alone sets the federal criminal appeal process apart from the trial. Another way in which the process is different is that appellate courts typically do not receive testimony or evidence. Instead, they consider and resolve legal arguments. This happens after the facts related to the case have been heard in the district court.

How does the appellate court receive information?

Given that the facts of the case are not presented as they were in a trial, there’s often confusion regarding how the appellate court receives information regarding the case in order to make a decision. Generally speaking, evidence that was received by the district court is transported to the location of the appellate court. This gives the appellate judge an opportunity to examine items that would enable them to consider the legal arguments of the appeal. It’s important to understand that the appellate court does not receive new evidence.

While the appellate court judge is able to review information from the trial, this will not include any new information. In other words, the details of the case probably won’t change. In fact, there isn’t much of a chance that you’ll be able to change anything that’s already on record from the trial.

What’s a “Notice of Appeal”?

There is a document called a “Notice of Appeal” that seems to be another area of confusion. Based on the title of the document, it’s understandable that some people would think it’s confirming an actual appeal. However, that’s not what the document represents. In fact, a “Notice of Appeal” and an appeal are entirely different. The notice serves the purpose of informing the appellate court and the district court that a party in the case intends to appeal. There’s a requirement to file the notice within ten days of the judgment being entered.

Generally speaking, it’s best to make a decision right away about whether or not you intend to appeal a case. You don’t want to wait until the last minute and endure unnecessary difficulties. Although the lawyer from the case has an ethical obligation to assist with preserving the client’s appellate rights, it doesn’t necessarily mean they will file the notice of appeal for the client.