What Is An Appeal? Attorney Marc  J. Victor explains the Appeal process.  If we’re talking about an appeal in a criminal case, that means things probably didn’t go so well.   First off, keep in mind, if you took a plea unless you put a very specific provision in the plea that allows you to appeal; which probably you didn’t because it’s very rare, and usually only happens in Federal Court unless you have that type of provision, when you took a plea you waived your right to appeal, and you no longer have a right to appeal.

If you went to trial and you lost at trial, now you have a right to appeal.   What this means is, not that you just get to say, “Hey, the trial went poorly, I want a new trial.”   You have to find a legal reason for a new trial, which you were convicted is not such a reason.   You have to find a legal error that was made; either by the prosecutor or the judge or some other problem happened in your case.   So, what you’re in essence saying to the higher court, the Court of Appeals, “I didn’t get a fair trial” for some reason.

Maybe the trial judge overruled an objection by the defense attorney or failed to let important evidence into your trial, or there was an issue with the jury instructions.   That’s a very common area for an appeal to be brought.

So, these are very important issues; you have a strict time limit to file your notice of appeal.   It all goes in front normally a three-judge panel in the State and in the Federal Court, it goes to San Francisco here in the Ninth Circuit, where I have appeared on many occasions and argued cases.   You get a three-judge panel there as well. What you’re looking for is a legal reason to say the trial wasn’t fair.   If you find such a reason, such a problem, if the Court of Appeals says, “Yes, this was a problem.”   Then, you are on your way to maybe getting your case reversed.

But, keep in mind, this is a very, very important point when you’re talking about appeals.   The issue of  Waiver.   Lot’s of criminal defense lawyers who do trials just went “ugh” because waiver is important.   The concept here is, even if there was an error in your case at trial, if your criminal defense lawyer didn’t raise that;  and object and give the trial judge an opportunity to fix that at the time, the Court of Appeals will likely say, “That issue is waived, and you can’t raise it on appeal.”

With the exception of fundamental Constitutional, structural type issues that leave us saying, “even though the defense attorney didn’t appeal, this trial is just sort of ineffective, it’s a bad trial, it didn’t comport with Due Process; and even though the defense lawyer didn’t object, we’re still going to allow the appeal.

But, that’s rare, and it’s a much higher standard.   So, on appeals, it’s very important to speak with a competent criminal defense lawyer who has done lots of appeals, and who understand the different standards that Appellate Courts use to evaluate legal errors that may have occurred at your trial, and again, because of the time limits if you’re in this situation, it’s very, very important to get in very quickly and visit with a  criminal defense attorney  who has a lot of experience in handling appeals.


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