Understanding the Criminal Appeals Process: A Step-by-Step Guide

The information in this article is for general informational purposes only and does not constitute legal advice. Laws change and individual circumstances vary. Consult a licensed attorney about your specific situation. Reading this article does not create an attorney-client relationship nor does merely contacting our office through this website or any other means.

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A criminal conviction is not necessarily the end of the legal road. In both state and federal systems, a person convicted of a crime generally has the right to challenge that conviction through an appeal. The appellate process is fundamentally different from the trial process, however, and understanding how it works is essential for anyone considering whether to pursue one.

This article provides a general overview of how criminal appeals work in the United States, what an appellate court can and cannot do, and how direct appeals differ from other forms of post-conviction relief.

What Is a Criminal Appeal?

A criminal appeal is a formal request asking a higher court to review what happened in a lower court and determine whether legal errors occurred that affected the outcome of the case. An appeal is not a new trial. The appellate court does not hear new witness testimony, consider new evidence, or re-decide questions of fact. Instead, it examines the existing record — the transcripts, motions, rulings, and evidence from the trial court — to determine whether the law was correctly applied.

The right to at least one appeal following a criminal conviction is recognized across all fifty states and in the federal system. In most jurisdictions, a defendant who is convicted after a trial has an appeal as of right, meaning the appellate court must accept and decide the case. Further levels of appeal (such as review by a state supreme court or the United States Supreme Court) are typically discretionary, meaning the higher court can choose whether to hear the case.

The Difference Between Trial and Appeal

Understanding the distinction between what happens at trial and what happens on appeal is critical.

At trial, the focus is on the facts. The jury (or judge, in a bench trial) listens to witness testimony, examines physical evidence, and decides whether the prosecution has proven its case beyond a reasonable doubt. The trial court is the factfinder.

On appeal, the focus shifts to the law. The appellate court assumes that the factual findings of the trial court are correct unless they are clearly erroneous or unsupported by the evidence. The question is whether the trial judge made errors of law — for example, whether the judge gave incorrect jury instructions, admitted evidence that should have been excluded, denied a motion that should have been granted, or imposed an unlawful sentence.

This distinction has practical consequences. If a defendant believes that the jury simply got it wrong — that the evidence was not strong enough to convict — an appeal is generally not the right vehicle for that claim. Appellate courts give substantial deference to the factfinder’s determination of witness credibility and the weight of the evidence. An appeal is designed to catch legal mistakes, not to second-guess the jury.

Steps in the Appeals Process

While the specific rules vary from jurisdiction to jurisdiction, the basic structure of a criminal appeal follows a common pattern across state and federal courts.

Filing a Notice of Appeal

The appeals process begins with the filing of a notice of appeal. This is a short document filed with the trial court (or, in some jurisdictions, with the appellate court) that formally declares the defendant’s intention to appeal. The notice of appeal must be filed within a strict deadline, and missing that deadline can result in the permanent loss of the right to appeal.

In the federal system, Federal Rule of Appellate Procedure 4(b) requires that a notice of appeal in a criminal case be filed within 14 days after the entry of judgment or the order being appealed. Some states allow longer periods — 30 days is common — but the deadlines are always firm. Courts treat these deadlines as jurisdictional, meaning that a late filing deprives the appellate court of the power to hear the case, regardless of the reason for the delay.

Because of the severity of missing this deadline, anyone considering an appeal should consult with an attorney as soon as possible after sentencing.

Record Preparation

After the notice of appeal is filed, the trial court prepares the record on appeal. This includes a complete transcript of all relevant trial proceedings (prepared by the court reporter), all documents filed in the case, and all exhibits admitted into evidence. The record is then transmitted to the appellate court.

Record preparation can take weeks or even months, depending on the length of the trial and the workload of the court reporter. In complex cases with lengthy trials, the transcript alone can run to thousands of pages. The cost of transcript preparation is borne by the appellant, though indigent defendants may be entitled to transcripts at public expense.

Briefing

The briefing phase is the heart of the appellate process. Written briefs are the primary way that attorneys communicate their arguments to the appellate court.

The appellant’s opening brief identifies the specific errors that allegedly occurred in the trial court, explains why those errors were legally wrong, and argues that the errors were harmful enough to warrant reversal. Each claimed error is typically presented as a separate “issue” or “assignment of error.” The brief must cite to the trial record (so the court can verify what actually happened) and to legal authority — statutes, constitutional provisions, and prior court decisions — supporting the appellant’s position.

The appellee’s brief (filed by the prosecution in a criminal appeal) responds to each of the appellant’s arguments, defends the trial court’s rulings, and argues that any errors were either legally correct or harmless.

The appellant may then file a reply brief addressing points raised in the appellee’s brief.

Briefing schedules are set by court rules or court order and typically allow 30 to 60 days for each brief. The entire briefing process can take several months from start to finish.

Oral Argument

After briefing is complete, the appellate court may schedule oral argument. During oral argument, attorneys for both sides appear before a panel of appellate judges (typically three judges in an intermediate appellate court) and present their positions in person. Judges frequently ask questions during argument, and much of the time is spent responding to the court’s concerns rather than delivering a prepared presentation.

Not all appeals receive oral argument. In many jurisdictions, the court has discretion to decide cases on the briefs alone, without oral argument, particularly where the issues are straightforward or well-briefed. Federal courts of appeals, for example, decide a significant number of cases without oral argument.

Decision

After briefing and any oral argument, the appellate court issues a written opinion or order resolving the appeal. The opinion explains the court’s reasoning and its conclusion on each issue raised. Opinions may be published (meaning they become binding precedent for future cases) or unpublished (meaning they resolve only the case at hand).

The time between oral argument (or submission on the briefs) and the issuance of a decision varies widely. Some courts issue decisions within weeks; others may take many months, particularly in complex cases.

Possible Outcomes

An appellate court can reach several different conclusions:

Affirmed. The court finds no reversible error and upholds the conviction and sentence. This is the most common outcome on appeal.

Reversed. The court finds that a legal error occurred that was serious enough to have affected the outcome. A reversal does not always mean the defendant goes free. In many cases, the court reverses the conviction and remands the case to the trial court for a new trial. The prosecution may then retry the defendant, this time without the error that led to reversal.

Reversed and remanded for resentencing. The court finds that the conviction was proper but that the sentence was unlawful or improperly calculated. The case goes back to the trial court for a new sentencing proceeding.

Vacated. The court sets aside the conviction or sentence, often with instructions to the trial court about what should happen next.

Dismissed. The court may dismiss the appeal for procedural reasons (such as a late-filed notice of appeal) or because the issue has become moot.

It is important to understand that appellate courts apply a harmless error standard to many types of trial errors. Even if the court finds that an error occurred, it may still affirm the conviction if it concludes that the error did not affect the outcome of the trial. Only errors that are found to be prejudicial — meaning there is a reasonable probability that the outcome would have been different without the error — warrant reversal.

Direct Appeal vs. Collateral Review

There is an important distinction between a direct appeal and collateral review (sometimes called post-conviction proceedings).

A direct appeal is the appeal taken immediately after conviction and sentencing. It challenges errors that appear in the trial record — things that happened (or should have happened) during the trial itself. The direct appeal is the primary and most straightforward avenue for challenging a conviction.

Collateral review refers to proceedings that occur after the direct appeal has been completed (or waived). The most common forms of collateral review are state post-conviction proceedings (which vary by state) and federal habeas corpus petitions under 28 U.S.C. § 2254 (for state prisoners) or 28 U.S.C. § 2255 (for federal prisoners).

Collateral proceedings are typically used to raise claims that could not have been raised on direct appeal because they depend on facts outside the trial record. The most common example is a claim of ineffective assistance of counsel. A defendant who believes that trial counsel performed deficiently — for example, by failing to investigate a defense, failing to call critical witnesses, or providing incorrect advice about a plea — generally must raise that claim through collateral proceedings rather than on direct appeal, because the facts supporting the claim (what counsel did or did not do, and why) are not part of the trial transcript.

For more on how direct appeals differ from post-conviction petitions, including the types of claims that can be raised in each proceeding and the different legal standards that apply, it is important to understand that these are separate legal processes with distinct rules, deadlines, and procedural requirements.

Collateral proceedings are subject to strict procedural rules, including statutes of limitations. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas petitions are generally subject to a one-year statute of limitations running from the date the conviction becomes final on direct review. Missing this deadline can permanently bar a petitioner from seeking federal habeas relief.

When to Seek Help

The criminal appeals process is technically demanding and governed by rigid procedural rules. The consequences of a missed deadline, a waived issue, or an inadequately briefed argument can be severe and irreversible.

If you or someone you know has been convicted of a crime and believes that legal errors occurred during the trial, sentencing, or plea process, it is important to speak with an attorney who handles criminal appeals as soon as possible — ideally before the deadline to file a notice of appeal expires. Many of the deadlines in the appellate process are measured in days, not months, and they begin running from the date of sentencing.

An attorney can review the trial record, identify potential issues for appeal, and advise on whether pursuing an appeal is appropriate given the facts and legal standards involved. In cases where the direct appeal has already been completed or the deadline has passed, an attorney can evaluate whether other avenues of relief — such as state post-conviction proceedings or federal habeas corpus — may still be available.

Criminal appeals require careful analysis, thorough research, and precise legal writing. The appellate courts decide cases based on the written record and the parties’ briefs, making the quality of the legal arguments presented on paper critically important.