8 FAQs about Federal Criminal Appeals

A criminal trial is undertaken. Errors are made by the prosecution and the court. Objections are lodged by the defense attorney. Conviction is obtained and sentence imposed. The case is final.


A federal appeal, however, is available. It must begin with the timely filing of a notice of appeal. Rule 4(b) of the Federal Rules of Appellate Procedure imposes a duty on the defendant to file his notice of appeal after “(i) the entry of either the judgment or the order being appealed, or (ii) the filing of the government’s notice of appeal.”


According to the Bureau of Justice Statistics, the rate of federal criminal appeals reached their peak in 1993 when 23 appeals were filed for every 100 convictions. Since 1993, the rate had dramatically declined to 16 appeals per 100 convictions. 85% of the convictions were affirmed by the appellate courts.


These disturbing figures notwithstanding, there are occasions when trial errors undermine the integrity and reliability of the verdict. When this happens, there’s really only one thing that you can do: file an appeal.


But how does an appeal work? Who can file? What happens if you win your appeal?


Below are answers to several common questions about the federal appeals process.


Who Can Appeal a Decision Made In Federal Criminal Court?


In the federal court system, both civil and criminal cases can be appealed. However, there is a difference as to who can file an appeal.


In a civil case, either party may file for an appeal.


In contrast, federal criminal cases typically only allow for the defendant to appeal a decision. Government appeals, almost exclusively dealing with the sentence imposed, represent roughly 5 percent of all criminal appeals. If a defendant is acquitted, the government is barred from appeal an because of the constitutional prohibition against double jeopardy. This protection belong exclusively to the defendant—the right not to be tried twice for the same crime.


Can I Appeal Any Verdict?


Yes and no.


While it is technically possible to file an appeal from any final judgment, federal appellate courts are reluctant to entertain what they deem to be a “frivolous appeal.”


Legitimate appeals generally adhere to this procedural structure:


First, an appellate court will generally review an error about which a timely objection was made during or before the trial. If an objection is not timely made, the court will review the error under the very limited “plain error” rule.


Second, defense counsel must conduct the appropriate legal research to determine if there is either controlling or persuasive case law to support a legitimate review of the error.


In effect, the burden lies with the defense to follow all the procedural prerequisites to protect the defendant’s appellate rights and to present credible, persuasive arguments to the appellate court requesting that the judgment be reversed.



Who Decides My Appeal?


Under 28 U.S.C. § 1291, federal appellate courts have jurisdictions to review final decisions of the U.S. District Courts.


As a general rule, a criminal defendant may initiate an appeal only after the district court has imposed sentence.


And, generally, a district court loses jurisdiction over a criminal case once the notice of appeal has been filed.


How Is an Appeals Decision Made?


An appeal is very different from a trial. No additional forms of evidence or witnesses will be able to testify in an appeals court. Judges in an appeals court will only review what is on the record from the trial itself, as well as briefs or oral arguments presented by both parties (more on that below).


How Does the Appeal Process Begin?


The party who is appealing the case (appellant) must file a notice of appeal regarding the decision in question. After the notice is filed, the appellant has a certain amount of time to write a brief that argues why an appeal should be heard.  The other party (appellee) can then respond with their own brief, which can be responded to by an appellant in a reply brief.


At each stage, there are specific time limits. If any of these time limits are not met, the right to an appeal is foreclosed. And these limits go by quickly. Generally speaking, a federal notice of appeal must be filed within 14 days of the final judgment.


Will I Have to Go To Court for My Appeal?


No. Most appeals are decided based only on the written briefs.


Ideally, though, you don’t want this to happen. You want the judges to schedule a hearing so they may hear oral arguments from each party.


These arguments usually last between 10-15 minutes long and expand on why the judges should or should not appeal the decision made by the lower court.


What Happens If I Win My Appeal?


There are typically two possible outcomes.


First, and this occurs infrequently, the court will order that a judgment of acquittal be entered by the district court which means you will be set free.


Second, the appeals court will find “trial errors” and set a retrial. In other words, you basically have to do everything over again and hope for a better outcome.


What Happens If My Appeal is Not Granted

What Happens If My Appeal is Not Granted?


You can petition for a rehearing, and if that petition is denied, you may apply for a writ of review (certiorari) to the U.S. Supreme Court which is rarely granted.


Once the direct appeals process has been completed, a federal defendant may file for a writ of habeas corpus under either 28 U.S. C. § 2241 or § 2255 challenging either his/her conviction or sentence. These are called motions to set aside conviction or sentence. A § 2241 motion can be filed only in the jurisdiction in which the defendant is confined while a § 2255 motion must be filed in the jurisdiction in which the defendant was convicted.


As you can see, this process is complicated and should not be taken lightly. To learn more about federal criminal appeals and get started today, reach out to us now.