# Prosecutors can appeal in the US? News to me! **URL:** \ **Category:** Factual Questions\ **Created:** [May 21, 2012, 6:15pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636 "2012-05-21T18:15:04Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [August 3, 2013, 10:11pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/21 "2013-08-03T22:11:05Z")
What part of the linked Rules of Procedure did you not understand? There are specific rules to deal with the exact circumstance of a prosecutor appealing a not guilty JNOV following a jury returning a guilty verdict. If such a scenario was not constitutional then why would there be a rule to deal with that circumstance? In[United States v. Wilson, 420 U.S. 332 (1975)](http://supreme.justia.com/cases/federal/us/420/332/) none other than the United States Supreme Court upheld the right of the government to appeal a district court judge’s not guilty JNOV. Wilson was convicted by a jury. The trial judge entered a not guilty verdict based upon a motion by the defendant’s attorney. The prosecution appealed. The Court of Appeals dismissed the prosecutor’s appeal on Double Jeopardy grounds, effectively upholding the trial judge’s actions. The prosecution again appealed to the Supreme Court. SCOTUS overturned the Court of Appeals in a 7-2 ruling. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 3, 2013, 10:32pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/22 "2013-08-03T22:32:48Z")
I would think that double jeopardy concerns wouldn’t be relevant to an appeal, because an appeal isn’t another trial, it’s a hearing about the first trial. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2013, 10:48pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/23 "2013-08-03T22:48:05Z")
> [@Frylock](#): > > I would think that double jeopardy concerns wouldn’t be relevant to an appeal, because an appeal isn’t another trial, it’s a hearing about the first trial. The purpose of the appeal is to get another trial. If the subsequent trial were barred by the Double Jeopardy Clause, the appeal would be moot. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [August 3, 2013, 11:00pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/24 "2013-08-03T23:00:33Z")
> [@Bricker](#): > > The purpose of the appeal is to get another trial. If the subsequent trial were barred by the Double Jeopardy Clause, the appeal would be moot. I didn’t realize all appeals had new trials as their purpose. ETA: Or did I misunderstand–were you saying the purpose of some specific appeal under discussion was to get a new trial? Yes, that was probably it, now I understand. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2013, 11:18pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/25 "2013-08-03T23:18:57Z")
> [@Frylock](#): > > I didn’t realize all appeals had new trials as their purpose. > > ETA: Or did I misunderstand–were you saying the purpose of some specific appeal under discussion was to get a new trial? Yes, that was probably it, now I understand. You’re right – appeals as a general principle can seek other outcomes – sentencing modifcations, for instance. As mentioned above, an interlocutory appeal occurs prior to the trial verdict and seeks review of a trial court’s evidentiary order. But I took **Frylock** ’s question to be about an appeal requesting a new trial. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [August 3, 2013, 11:28pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/26 "2013-08-03T23:28:37Z")
> [@friedo](#): > > In that case, the prosecution can simply try the defendant again. If he bribed the jury or judge, he was never in jeopardy, therefore double jeopardy does not apply. Forgive me, but are you saying that if a prosecutor gets it in his head that the first trial was fixed, he can simply get another trial? There is no process he has to go through first to actually prove that the trial was fixed? ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [August 3, 2013, 11:33pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/27 "2013-08-03T23:33:05Z")
> [@Alley\_Dweller](#): > > Forgive me, but are you saying that if a prosecutor gets it in his head that the first trial was fixed, he can simply get another trial? There is no process he has to go through first to actually prove that the trial was fixed? When the poster to whom you’re responding posted: “If he bribed the jury or judge, he was never in jeopardy”, he didn’t mean “prosecutor got it into his head that he bribed the jury”. He meant it was proven, in the court of law, that the jury was bribed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2013, 11:49pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/28 "2013-08-03T23:49:48Z")
> [@Alley\_Dweller](#): > > Forgive me, but are you saying that if a prosecutor gets it in his head that the first trial was fixed, he can simply get another trial? There is no process he has to go through first to actually prove that the trial was fixed? Double Jeopardy is an affirmative defense. This means that the accused must raise the defense. Normally, it’s trivially easy to show you were the accused in a prior criminal prosecution for the same acts. In this case, Aleman raised the defense and trial court ruled that the state disproved, by preponderance of the evidence, the existence of prior jeopardy. See _People v. Aleman_, 281 Ill.App.3d 991 (1996). And as the Seventh Circuit would later observe, the evidence was stronger than merely preponderance: > [@](#): > > Although the court earlier observed that the State’s burden was to establish the bribery by a preponderance of the evidence, the court also concurs in the State’s appraisal that the evidence presented also meets the standard of proof beyond a reasonable doubt. Were this a prosecution for the substantive offense of bribery, the court would have little difficulty in concluding that the People had presented a credible and coherent case against the defendant. The evidence clearly establishes the tendering of money to a public officer to influence him in the performance of his duties. (Citations omitted). Based on this factual finding, the Circuit Court held that there was no double jeopardy bar to reprosecuting Aleman for the Logan murder because there was never any jeopardy at the first trial. Furthermore, because crucial witnesses were not available at an earlier time, the court denied Aleman’s claims of unconstitutional preindictment delay. These rulings were upheld on appeal. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 4, 2013, 12:00am UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/29 "2013-08-04T00:00:19Z")
The Seventh Circuit case quoted above is _Aleman v. Judges of the Circuit Court of Cook County_, 138 F.3d 302 (1998). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 5, 2013, 11:28am UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/30 "2013-08-05T11:28:18Z")
> [@supershaun95062](#): > > If a court acquits the defendant, the prosecutor may not appeal the verdict. Appealing a verdict of “not guilty” would violate the Double Jeopardy Clause of the Fifth Amendment. Prosecutors may, however, appeal all pre-trial rulings and decisions regarding the admissibility of evidence at trial. > Court Means Judge or Jury!!! Well, **supershaun?** had a chance to review _Wilson_ yet? Do you have any questions? ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [August 5, 2013, 2:32pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/31 "2013-08-05T14:32:30Z")
> [@supershaun95062](#): > > With one exception, in the United States an acquittal cannot be appealed by the prosecution because of constitutional prohibitions against double jeopardy. The U.S. Supreme Court has ruled: > If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed, and the government cannot. U. S. v. Sanges, 144 U.S. 310 (1892). Ball v. U.S., 163 U.S. 662, 671 (1896) Those are PRE, really PRE, Incorporation rulings, the BoR did not apply to the states then. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 5, 2013, 5:00pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/32 "2013-08-05T17:00:49Z")
> [@lawbuff](#): > > Those are PRE, really PRE, Incorporation rulings, the BoR did not apply to the states then. Both Ball and Sanges involve federal criminal cases – no incorporation necessary. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [August 6, 2013, 2:18pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/33 "2013-08-06T14:18:28Z")
> [@Bricker](#): > > Both Ball and Sanges involve federal criminal cases – no incorporation necessary. Yes, but the OP’s case was a STATE case. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2013, 3:03pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/34 "2013-08-06T15:03:31Z")
> [@lawbuff](#): > > Yes, but the OP’s case was a STATE case. Yes, it was. But **supershaun** (who seems to believe discretion is the better part of valor) argued that the federal cases he quoted show the impossibility of a prosecution appeal from an acquittal of any stripe. Let’s assume he’s correct, although of course we know he’s not. But if he were correct, the fact that those cases were pre-incorporation wouldn’t hurt his claim. He would in fact be arguing that the Fifth Amendment forbids any prosecution appeal, and NOW the Fifth Amendment applies to the states. His error is the assumption that a judge-entered acquittal as a matter of law, following a jury verdict of guilty, cannot be appealed by the prosecution. It can, and the issue is considered _de novo_ at the appeals court. ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [August 6, 2013, 3:51pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/35 "2013-08-06T15:51:18Z")
> [@supershaun95062](#): > > The Judge is a Finder of Fact. His or Her Ruling Overruling the Guilty Verdict By The Jury and Entering An Acquittal is NOT Appealable By The Prosecutor. Double Jeopardy Applies to The Judges Ruling of Acquittal. Acquittal is the Same as A Not Guilty Verdict. You seem very invested in this being so, despite being, if I may be blunt, wrong. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [August 6, 2013, 3:54pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/36 "2013-08-06T15:54:31Z")
If I have a public defender and the prosecution appeals, do I still have the right to an attorney that will handle my case if I can’t afford one? Is it likely to be my trial attorney? ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [August 6, 2013, 3:56pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/37 "2013-08-06T15:56:24Z")
> [@Hershele\_Ostropoler](#): > > You seem very invested in this being so, despite being, if I may be blunt, wrong. Probably the defendant from the OP, who’s confused as to the dope’s status as purely dicta. ---
**Author:** ![Ranger\_Jeff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ranger_jeff/32/2065_2.png) [@Ranger\_Jeff](https://boards.straightdope.com/u/Ranger_Jeff)\ **Post date:** [August 6, 2013, 4:04pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/38 "2013-08-06T16:04:39Z")
> [@runner pat](#): > > Won’t fit on the drum. Band name! 😃 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2013, 4:33pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/39 "2013-08-06T16:33:43Z")
> [@Nars\_Glinley](#): > > If I have a public defender and the prosecution appeals, do I still have the right to an attorney that will handle my case if I can’t afford one? Is it likely to be my trial attorney? Yes. In fact, this was established the same day as the famous _Gideon v. Wainright_ case, th eone which determined that indigent defendants are entitled to free representation. In _Douglas v. California_, the Supreme Court ruled that the right to a lawyer extended to an appeal. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 6, 2013, 4:40pm UTC](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636/40 "2013-08-06T16:40:42Z")
Just to add: It may or may not be your trial attorney that handles such an appeal, but in this specific circumstance, your trial attorney would be a likely candidate, since he’s going to be well-versed enough in the progress of the case at trial to argue that the judge’s decision was correct as a matter of law. A defense appeal after conviction, though, may well raise the spectre of ineffective assistance of counsel. THAT won’t go well if trial counsel argues it. 🙂 [Previous page](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636.md?page=1) [Next page](https://boards.straightdope.com/t/prosecutors-can-appeal-in-the-us-news-to-me/622636.md?page=3)