An excellent question - and one that takes a long time to explain.
First you need to understand how criminal appeals work. It’s not simply a matter of saying to the appeals court, “We don’t think this was a fair trial. Please give us a new one. Regards, The Convicted Defendants.” An appellant must identify, specifically, errors that were made in his trial. Depending on the type of error identified, he may also have to show specifically how the error prejudiced him, and, potentially, how the outcome of the trial would have been different if the rror had not been made.
Claims of error are reviewed under several different standards. A ruling of law made by the trial court is reviewed de novo – that is, anew, with no particular deference to whatever the trial court decided. A finding of fact by the trial court, on the other hand, is accepted on appeal, as long as there is enough support in the record for the finding. An exercise of discretion by the trial judge - such as a ruling on the admissibility of evidence - is reviewed under the “abuse of discretion” standard: even if the appeals court doesn’t agree with it, could a reasonable jurist have reached that decision?
It may surprise you to learn that even trial errors of constitutional dimension do not mandate reversal if the accused can’t show that the result would have changed. (In the PD world, we called this the “if they wantcha, they gotcha” rule, and it derives from Chapman v. California).
There’s another major factor at play: the waiver rule. This basically says that if the trial court commits an error, and you fail to object to that error at trial, you cannot later bring it up on appeal. In other words, the trial court should have the chance to hear argument and correct its mistake. You can’t play the game of, for example, letting an error go unremarked at trial hoping it will help you, and then, if it doesn’t, complain on appeal.
Finally, we have the rules concerning “effective assistance of counsel.” The Sixth Amendment to the U.S. Constitution guarantees each person counsel in a criminal trial. Courts have held that this guarantee is meaningless without effective assistance of counsel at every stage of the criminal process. However, the test for whether or not a particular performance was “effective,” derived from a case called Strickland v. Washington, creates a high hill for defendants to climb. Strickland mandates a two-prong test: first, did the attorney’s performance fall below the minimum objective standard for effective representation? And, second, even if it did, did the defendant suffer specific prejudice as a result?
For example, let us say that your attorney falls asleep during the testimony of a prosecution witness. You might think that it would be enough, on appeal, to say, “Hey - my lawyer fell asleep!” But it’s not. That certainly meets the first prong - falling asleep during trial is below the minimum standard of representation contemplated by the Constitution. But you must also be able to point to prejudice: “While my lawyer was asleep, the prosecutor asked leading questions, elicited hearsay testimony, and permitted the witness to speculate as to matters outside his direct knowledge.” Even that is not enough. You must further be able to say: “That hearsay was the only evidence the jury heard linking me to the robbery, and that speculation about where I got all the money was the only direct link between me and the stolen money. If they hadn’t heard that, they would not likely have voted to convict.”
Now to put all these rules together and see what happens.
Next post.
- Rick
