Appeals, Writs, and Habeas Corpus: FAQ

This article answers frequently asked questions about writs and appeals. But you'll likely have more questions specific to your own circumstances. Contact a criminal appeals lawyer near you to get advice if you are considering appealing a conviction. 

What are appeals and writs?

These legal processes support the balance of justice:

• Criminal appeals
• Writs
• Writs of habeas corpus

An appeal is a petition to a higher court by a party seeking to overturn a lower court's ruling. A writ is a directive from a superior court that orders a lower court or government official to take a certain action in accordance with the law.

Finally, a writ of habeas corpus is a judicial mandate to a prison official ordering that they bring an inmate to court. It aims to determine whether the government imprisoned the person lawfully and whether a release is appropriate.

What can trigger an appeal?

The basis of an appeal is reversible error in the application of the law at the trial court level. A party argues that, based on the court record, the judge misapplied the law. In criminal cases, an appeal may target a criminal conviction itself or it may target the sentencing portion without regard to the underlying conviction.

There are a few specific bases for appeals in criminal cases. They all have to do with a misapplication of the law. An appeal might be based on one of the following:

• If the judge abused their discretion when ruling on a case, the injured party may file an appeal to overturn the harmful rulings.
• A criminal defendant might file an appeal if the weight of evidence does not reasonably support a guilty verdict.
• A defendant may allege that their lawyer's poor performance resulted in their conviction and deprived them of a fair trial.

Defendants must preserve issues for appeal. That is, they must bring it up at the original trial before they present it to the appellate court. Generally, a defendant preserves an issue by timely objecting to the issue during the original trial. This allows the trial judge the opportunity to correct it. Therefore, the appellate court would deny any appeal on that issue, even if the court grants appellate review of other properly preserved issues.

Preservation requires that the defense object to the lower court before an issue becomes eligible for examination by an appellate court. If the prosecution improperly presented a piece of incriminating evidence to the jury at trial but the defense attorney failed to object to it, the courts deem that the defendant waived any objection to that evidence. 

Can someone appeal because their attorney made mistakes?

Because defendants must preserve trial court errors by making a timely objection, skilled trial counsel is crucial to success upon appeal. Not everyone has access to top-notch defense counsel, which means that sometimes the trial attorney's competence becomes the basis for post-conviction relief.

Successfully appealing a verdict due to an attorney's incompetence is difficult. Convicted defendants cannot win an appeal just because they had a less-than-stellar lawyer.

As a general rule, they can only prevail on the basis that their legal counsel's representation was so bad that it denied the defendant their Sixth Amendment right to a fair trial, known as an ineffective assistance of counsel claim.

The standard for such an appeal is very high. Courts tend to maintain a strong presumption that the lawyer's assistance was within professional standards. The right to counsel does not guarantee the best representation. Instead, it provides a right to adequate representation. So long as the attorney's decision was reasonable under prevailing professional norms, the court will likely determine the counsel's assistance was effective.

In addition, defense counsel's error is not always a basis for overturning a conviction. Unless the trial's outcome was affected by the mistake, the court will likely find it harmless. If the rest of the evidence overwhelmingly points toward the defendant's guilt, an attorney's failure to exclude some incriminating testimony is not grounds for reversal.

When are appeals filed?

Parties may appeal after a trial or district court reaches a final judgment or order. This is for efficiency reasons, so delays do not bog down the lower court system. After a criminal trial's conclusion, a convicted defendant can ask for immediate relief via a motion for a new trial or a motion for a directed verdict from the presiding judge that would effectively override the jury's decision. These requests are rarely successful.

Sometimes, an appellate court allows an appeal to proceed before the trial process is complete. These are called interlocutory appeals. Such appeals occur when a party files an appeal regarding a specific matter in a case before the full trial concludes. They often require consent from the trial court or the other party, because the general policy does not favor delays in the legal system due to repeated appeals. Therefore, interlocutory appeals are not common. 

Courts only consider interlocutory appeals in specific circumstances, such as an emergency basis for relief, a unique question of law, or when all parties consent to it.

Does an appeal mean a new trial?

No. An appellate court does not mean a new trial. The parties do not present new evidence, issues, or witness testimony in a direct appeal. The appellate court only reviews the trial transcript and the exhibits presented during the trial, known as the trial record. The appellate court may examine evidence that a party alleges the trial court improperly excluded.

Each side typically presents its legal arguments in the form of legal briefs. Sometimes, the court allows interested third parties, like advocacy groups or civil rights organizations, to file their own legal briefs. These briefs are called amici curiae, or friends of the court, briefs. The appellate court then determines whether the lower court committed errors in either procedure or the application of law.

If the appellate court determines the trial court committed errors but deems the errors inconsequential, which are legally called harmless errors, a court is not obligated to overturn the judgment or grant a new trial.

Some states or specialty courts allow a losing defendant to request a new trial in the appellate court. This is called a trial de novo appeal. This occurs most often when the lower court uses an informal or abnormal process, such as conducting hearings without creating a record.

Are all judgments eligible for appeal?

There is no absolute right to an appeal. Even though all states provide some means of appeal, an appeal is not a constitutional right. However, if a legal mechanism exists to seek an appeal, the appeals process must meet constitutional fairness requirements.

Each state has laws outlining the cases that appellate courts may review. Some appeals, mainly appeals taken from appellate courts, are discretionary. A party might not like the verdict of a trial, but dislike will likely not go far to sustain an appeal. The higher court, often the state's supreme court, may decline to hear the appeal and leave the lower court's ruling intact.

A party may petition the U.S. Supreme Court to consider their case. They must file a writ of certiorari with the Supreme Court to begin the process. The Supreme Court typically only considers cases that involve an important issue of federal law. Therefore, it likely will not review a run-of-the-mill criminal law case involving an alleged error of law. The Supreme Court grants certiorari in less than 2% of criminal law cases that request review, and it decides about 70 cases per year.

What is the appeals process?

In most state court proceedings, the appellant (the party appealing the verdict) must meet a deadline for filing an appeal. In federal court, generally, parties must file a notice of appeal within 30 days of the ruling. An appellate court may deny a review if the party does not file it on time.

The filing of the notice of appeal starts the clock on the appeals process. From that point, other prescribed deadlines begin running. The petitioner must submit a legal brief detailing the trial court's alleged errors of law. The respondent or appellee (the party that prevailed at the trial) then has time to write a response.

Once the appellate court receives both briefs, it will analyze the arguments and decide whether:

• The trial court made any errors of law
• If so, whether the errors rise to the level of reversible error (i.e., serious errors)

The petitioner and respondent may request oral argument. If the court decides to hear oral arguments, the petitioner will present their arguments and field questions from the judge(s), and then the respondent will do the same.

Whether the appeals court hears oral arguments or issues a ruling based solely on the written briefs, the court will either:

• Affirm the decision
• Reverse the decision
• Order a new trial
• Modify the ruling in some way
• Send the case back to the trial court with directions to consider certain evidence or apply a certain legal standard

Depending on the appellate court's decision, the parties may request a new appeal. Or, they may have to prepare for a new trial.

What are the odds of a successful appeal?

The number of successful appeals is low. Appellate courts give the trial court great leeway in conducting trials. The law does not guarantee perfect trials. Appeals courts, therefore, will only overturn verdicts containing clear and serious errors of law.

Because of the discretion allowed to trial courts, petitioners carry an even greater burden in proving that serious and harmful errors of law occurred. If the court of appeals can find any reasonable argument that the error likely did not change the verdict and is therefore harmless, it will refuse to overturn it.

There are, of course, cases in which serious errors occurred. Appellate courts will overturn those verdicts. For example, suppose the trial court denied rights guaranteed by the U.S. Constitution, such as due process and equal protection rights, and that the denial led to the defendant's conviction. In that situation, the appellate court will reverse the trial court.

What's a writ of habeas corpus?

A writ of habeas corpus is a court order that allows prisoners to challenge the legality of their confinement. Any prisoner may file the writ. People held in contempt of court may also file it.

Also known as "the Great Writ," a writ of habeas corpus serves as a check on the power of the government by allowing a prisoner a legal avenue to contest their imprisonment.

A prisoner may file the writ in state or federal court. However, before filing in federal court, state prisoners must exhaust all state options.

While a defendant may use the petition for writ of habeas corpus process to challenge pre-trial detention and excessive bail, it often serves as a last-resort source of justice for someone fighting an alleged unjust sentence of imprisonment.

A prisoner who prevails on their federal habeas corpus petition may receive various types of habeas corpus relief. For example, a judge may order their immediate release from confinement or order a new trial if appropriate.

Questions About the Appeal and Habeas Corpus Process? Ask an Attorney

Post-conviction actions are some of the most complicated aspects of the criminal justice system. For help with these options, consider working with an expert criminal defense attorney. They understand the legal landscape and can guide clients through the legal processes necessary to help protect their freedom.

A skilled appellate lawyer can review the trial court's transcript and search for errors that could overturn the outcome. This change could come through an appeal or a writ of habeas corpus, depending on the status of the case.

Contact an experienced criminal defense attorney near you today if you believe a court committed an error.