When disputes are not satisfactorily resolved in the trial courts, each party can petition the appeals court to review the case. In this section, we will review the process of appeals and how decisions are made by the appellate courts.

7.6.1 Overview of the Appeals Process

The government cannot appeal a jury’s decision by acquitting the defendant or finding the defendant not guilty. Thus, most criminal appeals involve defendants found guilty at trial. The government may appeal a court’s pretrial ruling in a criminal matter before the case is tried. For example, the decision to suppress evidence obtained in a police search may result in an interlocutory appeal. Although the defendant is permitted to appeal after entering a guilty plea, the only basis for their appeal is to challenge the sentence given. When the defendant appeals, they are referred to as the appellant (or petitioner), and the State is the appellee (or respondent). The petitioner is the party who lost in the last court and is petitioning the next level court for review; the respondent is the party who won in the last court.

In routine appeals, the primary function of appellate courts is to review the record for errors made by the trial court before, during, or after the trial. No trial is perfect, so the goal is to ensure a fair trial. The appellate courts examine the fairness of a trial by looking for fundamental errors. Appellate courts will reverse the conviction and possibly send the case back for a new trial when they find that trial errors affected the case’s outcome. A lower court’s judgment will not be reversed unless the appellant can show that a serious error was made by the lower court. By reviewing for errors and then writing opinions that become case law, appellate courts perform dual functions in the criminal process: error correction and lawmaking.

Appellate judges generally sit in panels of three judges. They read the appellant’s brief (a written document filed by the appellant) and the reply brief (a written document filed by the appellee). They may also read amicus curiae briefs written and submitted by the parties or friends of the court. Amicus curiae, a Latin phrase that translates as “friend of the court,” are individuals or groups who have an interest in the case or some expertise but are not parties to the case. The appellate panel will generally listen to very short oral arguments, generally twenty minutes or less, by the parties attorneys. During these oral arguments, appellate judges may interrupt to question the attorneys about their positions. The judges will consider the briefs and arguments before deciding on majority rule. The appellate court can issue an order to affirm or reverse the decision. The court can order a new trial or dismiss the case when the case is reversed.

7.6.2 Standards of Review

You have just learned that one function of the appellate courts is to review the trial record and see if there is a prejudicial or fundamental error. Appellate courts do not consider each error in isolation; instead, they look at the cumulative effect of all the errors during the trial. Appellate court judges must sometimes let a decision of a lower court stand, even if they personally don’t agree with it.

An analogy that sports enthusiasts will be familiar with is instant/video replay. Officials in football, for example, will make a call, a ruling on the field, immediately after a play is made. This decision, when challenged, will be reviewed, and the decision will be upheld unless there is “incontrovertible evidence” that the call was wrong. When dealing with appeals, the standard of review indicates how much consideration the appellate court will give to the lower court’s decision. Sometimes the appellate courts will defer to the trial court’s decision, and sometimes the appellate courts will reject the trial court’s decision.

The appellate court will allow a trial court’s decision about a factual matter to stand unless the court clearly got it wrong. The appellate court reasons that the judge and jury were in the courtroom listening to and watching the demeanor of the witnesses and examining the physical evidence. They are in a much better position to determine the credibility of the evidence. Thus, the appellate court will not overturn findings of fact unless it is firmly convinced that a mistake has been made and that the trial court’s decision is clearly erroneous or “arbitrary and capricious.” The arbitrary and capricious standard means the trial court’s decision was completely unreasonable, and it had no rational connection between the facts found and the decision made.

When it comes to questions of law, the appellate courts employ a different standard of review called de novo review. De novo review allows the appellate court to use its own judgment about whether the trial court correctly applied the law. Appellate courts give little or no deference to the trial court’s determinations and may substitute their own judgment on questions of law. Questions of law include the interpretation of statutes or contracts, the constitutionality of a statute, and the interpretation of rules of criminal and civil procedure. Trial courts presume that laws are valid and do not violate the constitution, and the burden of proving otherwise falls on the defendant. However, trial courts sometimes get it wrong. Appellate judges are perhaps in a better position to decide the law than the trial judge. They are not faced with the fast-pace of the trial and have the time to research and reflect.

Sometimes the trial court must resolve a question in a case that presents factual and legal issues. For example, when the police stop and question a suspect, there may be both legal and factual questions. One legal question is whether the police had reasonable suspicion for the stop. A factual question is whether police read the suspect the required warnings.

7.6.3 Various Appellate Opinions

In most appeals filed in the intermediate courts of appeal, the appellate panel will rule without a written opinion stating why it ruled as it did. The position and decision by the majority of the panel (or the entire court when it is a supreme court case), is called the majority opinion.

When appellate court judges disagree, they may issue one of the following written statements about why they disagree with the majority opinion:

• Concurring opinion: a statement where the judge agrees with the result reached in the majority opinion but not the reasoning.
• Dissenting opinion: a statement where the judge disagrees with the results and votes against the majority opinion.
• Per curiam opinion: an unsigned statement or a court opinion issued in the name of the court rather than specific judges.
• Plurality opinion: a statement where not enough justices agree on the result for the same reason; a plurality opinion controls only the case currently being decided by the court and does not establish a precedent that judges in later similar cases must follow.
• Federal Appellate Review of State Cases: Through petitions for writ of certiorari, the U.S. Supreme Court can review cases from the state courts. The Court will generally accept review when the cases involve the federal constitution. The U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983), explained when the Court will “weigh in” on a state court matter. It held, “When . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, (Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983).”

In this section, we have looked at the process and activities through which the courts help to facilitate appeals of cases. This is so vital to the justice and fairness that must be guaranteed in the justice system. Without this carefully laid out appeals process, the lower courts will be free to commit serious errors that could destroy public confidence in the entire justice system.