What Is a Criminal Appeal?

A criminal appeal is a formal request asking a higher court to review a conviction or sentence for legal errors. Unlike a trial, an appeal is not an opportunity to present new evidence or retry the facts of the case. Instead, appellate judges examine the written record from the trial court to determine whether the law was applied correctly.

"An appeal is not a do-over. The question is not whether the defendant is guilty, but whether the trial was fair."

The distinction matters because it shapes everything about how appeals work:

Understanding these fundamentals is essential because many people approach appeals expecting a second chance to argue innocence. While actual innocence can be a powerful theme, the legal machinery of appeals operates on different terms.

Types of Criminal Appeals

Not all appeals are the same. The type of appeal available depends on where you are in the process, what issues you're raising, and whether you've already exhausted other options.

Direct Appeal

A direct appeal is the first and most common form of appeal. After a conviction, defendants have an automatic right to appeal to a higher court. The appeal is based entirely on the trial record—the transcripts, motions, evidence, and rulings that occurred in the lower court.

Key characteristics of direct appeals:

  1. Strict deadlines. In most states, you must file a Notice of Appeal within 30 days of sentencing. Miss this deadline, and you may lose your right to appeal entirely.
  2. Limited to preserved issues. Generally, you can only raise issues that your trial attorney objected to during the proceedings. If your lawyer failed to object, the issue may be "forfeited."
  3. No new evidence. The appellate court reviews only what happened at trial. You cannot introduce new witnesses, documents, or facts.

State Collateral Attack (Post-Conviction Relief)

When a direct appeal fails—or when the issues you need to raise weren't preserved in the trial record—a collateral attack may be available. These proceedings go by different names in different states:

Collateral attacks allow defendants to raise issues outside the trial record, including:

The critical difference: direct appeals ask "was the trial conducted properly?" while collateral attacks ask "was the conviction fundamentally fair?"

Federal Habeas Corpus

For state prisoners who have exhausted their state court remedies, federal habeas corpus (28 U.S.C. § 2254) provides a final avenue of review. Federal courts can grant relief when a state conviction violated the U.S. Constitution.

However, federal habeas is heavily restricted by the Antiterrorism and Effective Death Penalty Act (AEDPA):

For federal prisoners, relief is sought under 28 U.S.C. § 2255, which operates similarly but is filed in the sentencing court.

Comparison: Direct Appeal vs. State Writ vs. Federal Habeas

Feature Direct Appeal State Habeas/440 Federal Habeas
Timing Immediately after conviction After direct appeal After state remedies exhausted
Deadline 30 days (typically) Varies by state 1 year (AEDPA)
Record Trial record only Can include new evidence Limited to state record
Issues Preserved errors IAC, new evidence, misconduct Federal constitutional claims
Standard Various State-specific Highly deferential

Common Grounds for Appeal

Successful appeals are built on specific legal errors. While every case is different, certain issues appear repeatedly in appellate litigation.

Ineffective Assistance of Counsel

The Sixth Amendment guarantees the right to effective legal representation. When a defense attorney's performance falls below professional standards and prejudices the outcome, the conviction may be overturned.

To prove ineffective assistance, you must show:

  1. Deficient performance. The lawyer made errors so serious that they were not functioning as the "counsel" guaranteed by the Constitution.
  2. Prejudice. There is a reasonable probability that, but for the errors, the result would have been different.

Examples include failure to investigate alibi witnesses, failure to object to inadmissible evidence, or sleeping during trial.

Prosecutorial Misconduct

Prosecutors have enormous power, and with it comes the obligation to play fair. Misconduct can take many forms:

Improper Jury Instructions

The judge's instructions tell the jury how to apply the law. Errors in these instructions can mislead jurors about the elements of the crime, the burden of proof, or available defenses.

Insufficient Evidence

Even when a jury convicts, the appellate court can reverse if no rational juror could have found guilt beyond a reasonable doubt based on the evidence presented.

Constitutional Violations

Many successful appeals rest on violations of fundamental rights:

Other Common Grounds

The Appeals Process Step-by-Step

Understanding the timeline and mechanics of an appeal helps set realistic expectations. The process is deliberate and often slow.

Step 1: Filing the Notice of Appeal

The Notice of Appeal is a simple document that tells the court you intend to appeal. Despite its simplicity, it's the most important filing—miss the deadline and your appeal rights may be gone forever.

Step 2: Record Preparation

After the notice is filed, the trial court prepares the appellate record, which typically includes:

Record preparation can take months. In complex cases with lengthy trials, the transcripts alone may run thousands of pages.

Step 3: Briefing

Briefing is the heart of the appellate process. This is where the legal arguments are made.

  1. Opening Brief (Appellant). The defendant's attorney identifies the errors and argues why they require reversal. This document can be 50+ pages and requires extensive legal research.

  2. Respondent's Brief (Prosecution). The state responds, defending the conviction and arguing that any errors were harmless.

  3. Reply Brief (Appellant). The defendant gets the last word, responding to the state's arguments.

Briefing schedules typically allow 30-90 days for each brief, meaning this phase alone can take six months or more.

Step 4: Oral Argument

Not all appeals include oral argument—many are decided "on the briefs." When argument is granted, each side typically receives 15-30 minutes to present their case and answer the judges' questions.

Oral argument is not a time to repeat the briefs. Skilled appellate attorneys use this opportunity to address the court's specific concerns and highlight the strongest points.

Step 5: Decision

The appellate court issues a written opinion explaining its decision. Possible outcomes include:

Step 6: Further Review

If you lose, you may be able to seek review from a higher court:

Each level of review is discretionary—the higher court can simply refuse to hear the case.

Winning Strategies for Criminal Appeals

Appeals are won on paper, through meticulous legal work. Several strategic principles separate successful appeals from unsuccessful ones.

Preservation Is Everything

"You can't raise on appeal what you didn't raise at trial."

This rule—called the preservation requirement—means that most winning issues must have been objected to by trial counsel. Appellate lawyers spend enormous time reviewing transcripts to identify which issues were properly preserved.

When an issue wasn't preserved, options are limited:

Understand the Standard of Review

Not all errors are reviewed the same way. The "standard of review" determines how much deference the appellate court gives to the trial court's decision:

Knowing the standard helps focus arguments appropriately.

The Harmless Error Doctrine

Even when you prove an error occurred, you must also show it mattered. Courts routinely find errors "harmless" if they conclude the outcome would have been the same regardless.

The key is connecting the error to the verdict:

Build a Narrative

The best appellate briefs don't just recite legal rules—they tell a compelling story about why justice requires reversal. Judges are human. When the facts suggest actual innocence or fundamental unfairness, courts find ways to grant relief.

How to Choose an Appeals Lawyer

Appellate work is a specialty. The skills that make a great trial lawyer—quick thinking, witness examination, courtroom presence—are different from what makes a great appellate lawyer: meticulous research, persuasive writing, and mastery of procedural rules.

Trial Lawyer vs. Appellate Specialist

Many defendants assume their trial attorney will handle the appeal. This is often a mistake.

Questions to Ask During Consultation

Before hiring an appellate attorney, ask:

  1. How many criminal appeals have you handled?
  2. What is your success rate? (Be wary of anyone claiming very high numbers)
  3. Have you handled appeals in this jurisdiction before?
  4. Will you personally handle my case, or will it be delegated?
  5. What issues do you see in my case based on your initial review?
  6. What is your fee structure?

Red Flags to Avoid

Be cautious of attorneys who:

Public Defender Appellate Units vs. Private Counsel

If you cannot afford a private attorney, you may be entitled to appointed counsel for your direct appeal. Many public defender offices have dedicated appellate units staffed by experienced specialists.

Private counsel offers more individual attention and flexibility, but skilled public defender appellate attorneys handle hundreds of appeals and know the courts intimately.

To find a qualified appellate attorney, see SPCRC's Recommended Lawyers by state.

Cost of Criminal Appeals

Criminal appeals require significant attorney time—reviewing thousands of pages of transcripts, researching complex legal issues, and crafting persuasive briefs. The costs reflect this reality.

Attorney Fees: Full Representation

Full representation means the attorney handles everything: record review, research, brief writing, oral argument, and all court filings.

Type of Appeal Typical Fee Range
Direct Appeal $20,000 – $50,000+
State Habeas / Post-Conviction $10,500 – $30,000+
Federal Habeas $15,000 – $50,000+

Fees vary based on:

Drafting-Only Option

Some attorneys offer a "drafting-only" arrangement where they prepare the briefs and petitions, but the client handles filing and procedural steps. This option typically costs 50-60% of full-representation fees and can make quality representation more accessible.

This works best for clients who:

Other Costs

Beyond attorney fees, expect:

Limited free options exist:

Statistics: Success Rates and Outcomes

Understanding realistic success rates helps set appropriate expectations. The numbers are sobering but not hopeless.

Overall Reversal Rates

Most studies find that 10-20% of criminal appeals result in some form of relief—whether reversal, remand, or modification of sentence. The majority of convictions are affirmed.

Several factors affect these rates:

What "Success" Looks Like

A "successful" appeal doesn't always mean walking free:

Why Most Appeals Fail

Understanding why appeals fail can help focus efforts:

  1. Preservation problems: Issues weren't properly raised at trial
  2. Harmless error: Errors occurred but didn't affect the outcome
  3. Weak issues: The claimed errors simply weren't errors
  4. Deferential standards: Appellate courts give significant deference to trial courts and juries
  5. Procedural defaults: Deadlines missed, rules not followed

The appeals that succeed are usually those where skilled attorneys identify strong, preserved issues and present them effectively. Quality of representation matters enormously.

Appeals by Jurisdiction

Each jurisdiction has its own court structure, procedures, and quirks. Here's an overview of major states and the federal system.

California

California has no strict deadline for state habeas petitions, but courts require filing "as promptly as circumstances allow."

Texas

Texas habeas petitions in non-death cases go directly to the Court of Criminal Appeals, which has original jurisdiction.

New York

New York's CPL 440 motion is filed in the trial court, not the appellate court, and allows claims based on matters outside the record.

Federal System

The U.S. Supreme Court accepts only about 100-150 cases per year out of 7,000+ petitions—certiorari is highly discretionary.

For state-specific guidance and attorney recommendations, visit SPCRC's Recommended Lawyers.

Frequently Asked Questions

Can I get out on bail during my appeal?

In most cases, no. After a felony conviction, the presumption shifts against release. However, some defendants can obtain bail pending appeal if they demonstrate:

Bail pending appeal is more commonly granted for non-violent offenses and shorter sentences.

How long does a criminal appeal take?

Direct appeals typically take 1-3 years from notice of appeal to final decision. Complex cases, death penalty appeals, and cases with multiple levels of review can take much longer.

State habeas proceedings add additional years. Federal habeas can add several more. Some cases spend a decade or more in the appellate system.

What if I discover new evidence after my appeal?

New evidence generally cannot be raised on direct appeal because the appellate court is limited to the trial record. However, newly discovered evidence can be the basis for:

The evidence must typically be material (likely to change the outcome) and must not have been discoverable earlier through reasonable diligence.

Can I fire my appellate lawyer and get a new one?

Yes, but consider:

If you have serious concerns about your attorney's performance, address them directly first. If that fails, consult with another appellate attorney before making a change.

What happens if I win my appeal?

It depends on the type of relief granted:

Winning an appeal is often the beginning of a new phase, not the end of the case.

This guide provides general information about criminal appeals and is not legal advice. Every case is different. To discuss your specific situation with a qualified appellate attorney, visit SPCRC's Recommended Lawyers.