This month, we would like to explore appealing an unfavorable verdict. It is a big topic, so let’s focus these two concerns:
Do you generally do appellate work and if so, what are some of the primary hurdles compared to an affirmative defense of self-defense trial?
How does the time commitment change with appeals work, compared with a jury trial, and how do the costs factor into the process?
Our office does appellate work, and as the question implies, the appeals process is quite different from the pre-trial and trial process. Often, trial attorneys do not engage in appellate work because the process is so different. However, as with the selection of a trial attorney, it is important to select an appellate attorney that is knowledgeable with respect to self-defense claims.
Regardless of who your appellate attorney is, one of the primary hurdles on appeal will be the trial court record. Appeals are constrained by the issues and/or objections raised at the trial court level. Therefore, issues for appeal are preserved or lost during the trial process. Many opportunities for appeal may be lost if an issue is not raised or if an objectionable issue is not objected to. Appellate courts will generally not review issues on appeal if the issue was not raised or preserved at the trial court level. The policy, generally, is that you can’t raise the issue for the first time on appeal. So, if there is an important issue, make sure it is raised on the record at the trial court level, or the appellate court will not consider the issue on appeal.
This leads to another hurdle on appeal — time and expense. You will likely have to pay an attorney more than $10,000 for an appeal (probably much more), especially if the appeal is an appeal from a jury trial. An appeal from a jury trial is very expensive because the attorney will have to obtain and review an enormous written record of any relevant pre-trial and trial proceedings. These transcripts can be thousands of pages. Additionally, appellate counsel will have to spend a great deal of time researching for and preparing a written brief that could take weeks to prepare. Then, once written briefs are submitted, appellate counsel may have to prepare for and engage in oral argument before the appellate court. Oral argument would involve a great deal more time and expense. Finally, if the appeal is denied at the first level of appeal, you may find it necessary to appeal again to a higher level appellate court, which would require more briefing and oral argument. As you can see, this process could involve a great deal of time and expense.
There are other hurdles, of course, but one more I’d like to mention is that the standard to prevail on appeal can be very difficult. Appellate courts are reluctant to overturn things that have been done at the trial court level unless there has been a significant mistake. The standard will vary depending on the nature of the challenge and the degree of the harm created. In any case, the legal hurdle is high when challenging a decision on appeal. At the trial court level, the State has the massive hurdle of disproving self-defense beyond a reasonable doubt. On appeal, the burden is reversed. It will be your burden to prove reversible error. That burden is difficult to overcome because appellate courts are reluctant to overturn the decisions of trial court judges, and they are even more reluctant to overturn the decision of a jury. That’s why it is important to consider post-defense appellate assistance programs. Organizations like the Armed Citizen’s Legal Defense Network could be useful resources, not only at the trial court level, but also on appeal.
