Chapter 15
Appellate and Habeas Corpus Review
LEARNING OBJECTIVES
After reading this chapter, students should be able to:
2. Describe the two primary functions of appeals.
4. Define the contemporaneous objection rule and explain its impact on appeals.
6. Identify the different appellate standards of review and evaluate their impact on
the criminal appeals.
8. Compare and contrast plain error, reversible error, and harmless error.
10. Compare and contrast appeals and postconviction review processes.
12. Analyze how state courts of last resort and the U.S. Supreme Court exercise their
discretion to set justice policy.
LESSON PLAN
Correlated to PowerPoints
I. Nature of the Appellate Process
Learning Objective 1: Explain how appeals and appellate processes differ from
trials and trial processes.
Learning Objective 2: Describe the two primary functions of appeals.
Learning Objective 3: Explain how Double Jeopardy limits appeals by the
prosecution in criminal cases.
Learning Objective 4: Define the contemporaneous objection rule and explain its
impact on appeals.
Learning Objective 5: Differentiate between mandatory and discretionary
appellate jurisdiction.
A. The Purposes of Appeal
i. The most obvious function of appellate courts is error correction. The
error-correction function of appellate review protects against arbitrary,
capricious, or mistaken legal decisions by a trial court judge.
ii. The other primary function of appellate courts is policy formulation. The
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B. Limitations on the Right to Appellate Review
i. A basic principle of U.S. law is that the losing party has the right to one
appeal.
ii. Although U.S. law recognizes the right to one appeal, the right to
appellate review is subject to several important limits and exceptions.
Appeals may be filed only by parties who have lost in the lower court.
iii. The prosecution is not permitted to appeal an acquittal. This is because
the Fifth Amendment guarantees, “Nor shall any person be subject for the
same offense to be twice put in jeopardy of life or limb.” Prosecutors are
allowed to appeal questions of law that would not result in a defendant
being put in jeopardy again.
iv. Appeals are also discretionary. The lone exception involves capital
vi. Appeals are also confined to issues properly raised in the trial court.
vii. Appeals in criminal cases have also historically been limited in the
United States to legal rulings that led to a conviction. This restriction,
however, has changed slowly over time. Several states now allow
defendants to appeal the sentence imposed by the trial judge. Defendants
are also permitted to appeal illegally imposed sentences.
viii. Appeals from U.S. district courts and most appeals from state courts of
general jurisdiction are heard by intermediate courts of appeals. In states
that do not have intermediate appellate bodies, the initial appeal is filed
with the court of last resort. These courts have mandatory appellate
jurisdiction.
ix. After the first reviewing body has reached a decision, the right to one
appeal has been exhausted. The party that loses the appeal may request
that a higher court review the case again, but such appeals are
discretionary; the higher court does not have to hear the appeal.
x. The U.S. Supreme Court and most state supreme courts have largely
discretionary appellate jurisdiction.
C. Appellate Standards of Review
i. How much deference or scrutiny an appellate court will afford to the
decisions of a judge, jury, or administrative agency in an appeal is
referred to as the “standard of review.”
ii. The most frequently used standards of review in criminal cases are: de
novo (anew); mixture of de novo and clear error; clear error;
reasonableness/ substantial evidence; and abuse of discretion.
iii. Given these standards of review, criminal appeals rarely involve
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iv. Questions of law are reviewed without deference on appeal. Questions of
v. The appellant may also claim constitutional violations, including illegal
search and seizure or improper questioning of the defendant by the
police.
vi. Finally, some defendants who have pled guilty may seek to set aside the
guilty plea because of ineffective assistance of counsel or because the
plea was not voluntary.
Class Discussion/Activity 1
Discuss the contemporaneous objection rule. Why is it important? Is it possible to
appeal without addressing the contemporaneous objection rule? How? Do you
think this rule has an impact on the number of appeals?
Media Tool
Read the article titled The Concept of Double Jeopardy: Background:
Write a one-page paper on why or why not the government should or should not
have a right to try a suspect twice for the same offense if additional evidence is
discovered (use the conclusion of the first trial as a reference point).
What If Scenario
What if all criminal appeals were reviewed by one single appellate judge instead
of a panel of three (or in some cases the entire appellate court). Would wrongful
conviction and incarceration go up significantly? Why or why not?
See Assignment 1
II. Appellate Court Procedures
Learning Objective 6: Identify the different appellate standards of review and
evaluate their impact on the criminal appeals.
Learning Objective 7: Describe the six customary phases in the appeals process.
Learning Objective 8: Compare and contrast plain error, reversible error, and
harmless error.
Learning Objective 9: Analyze the reasons why most criminal appeals result in
convictions being affirmed.
A. Appellate court procedures reflect numerous variations among the nation’s
51 legal systems. Nonetheless, each judicial system uses essentially the same
six steps to start an appeal from a trial court judgment. The steps in the
appeals process are as follows.
B. Notice of Appeal
i. The first step of the appeals process consists of filing a notice of appeal
with the trial court.
C. Appellate Court Record
i. After the notice of appeal has been filed, the next step is preparing and
transmitting the appellate court record.
D. Appellate Briefs
i. The third step in the appeal process consists of writing the appellate
briefs.
ii. First, the appellant files an opening brief, which lists alleged errors on
questions of law that were made at trial.
iii. Next, the winning party in the lower court files a response brief, setting
iv. Briefs are arguably the most important part of the appellate process
because roughly three-quarters of all appeals are decided by appeals
courts based on the briefs without the benefit of oral argument.
E. Oral Argument
i. Oral argument provides an opportunity for face-to-face contact
between the appellate judges and lawyers. The lawyers for both
parties are allotted a limited time to argue their side of the case before
the appellate court panel.
F. Written Opinion
i. After the case has been argued, the court recesses to engage in group
deliberations. Decisions are made in private conference.
ii. One majority judge is assigned to write the opinion. The opinion of
the court may be short, but it may run dozens of pages for important
or complex legal issues.
G. Disposition
i. The court’s opinion ends with a disposition of the case.
ii. The appellate court may affirm (uphold) the judgment of the lower
court or modify the lower court ruling by changing it in part.
iii. The decision may be reversed (set aside) with no further court action
required
iv. It may be reversed and remanded, meaning the decision of the lower
court is overturned and the case is sent back to the lower court for
further proceedings.
v. The case may also be remanded to the lower court with instructions
for further proceedings.
H. Reversible vs. Harmless Error
i. Appellate courts modify, reverse, remand, or reverse and remand only if
they find error—that is, a mistake made during the trial. If the error is
ii. One exception to the contemporaneous objection rule is for mistakes that
constitute plain error. Plain errors are defects seriously affecting
substantial rights that are so prejudicial to a jury’s deliberations “as to
undermine the fundamental fairness of the trial and bring about a
miscarriage of justice” (United States v. Polowichak, 1986, p. 416).
iii. Even when an appellant preserves a claim by timely objection and the
appellate court finds that the trial court erred, the appellate court may still
affirm the conviction if it finds that the error was harmless. This
harmless error rule avoids the “setting aside of convictions for small
errors or defects that have little, if any, likelihood of having changed the
result of the trial” (Chapman v. California, 1967).
I. Rising Caseloads and Expedited Appeals
i. In recent years, traditional appellate court procedures have been modified
because of exponential increases in appellate court filings. To
Class Discussion/Activity 2
Discuss the difference between plain error, reversible error, and harmless error.
Include a discussion of the impact that these different types of error have on
appeals.
Class Discussion/Activity 3
Discuss the reasons why most criminal appeals result in convictions being
affirmed.
Media Tool
Read one of the cases of people exonerated at the Innocence Project website:
Write a one-page paper reacting to the details in the case. See what information
you can find regarding the person who was exonerated. What are they doing
today?
What If Scenario
What if you are a defense attorney whose client has just been convicted of
aggravated armed robbery in the state of which you are a resident. Draw a
diagram illustrating what his appeal process will look like. What if all of his
appeals are denied; what else could you do for him?
See Assignments 2 and 3
III. Criminal Appeals
Learning Objective 10: Compare and contrast appeals and postconviction review
processes.
A. Law on the Books: Expanded Opportunity to Appeal Criminal
Convictions
i. Indigent defendants have everything to gain and nothing to lose by filing
an appeal. The decisions expanding the opportunity for indigent
defendants to appeal produced an exponential increase in the number of
criminal appeals filed.
B. Law in Action: Defendants Rarely Win on Appeal
i. Over the past 30 years or so, as penalties for all sorts of crimes have
increased, a broader range of criminal cases are being appealed.
ii. Why do criminal appeals rarely succeed? Two reasons: The appellate
standards of review applicable to most decision-making during criminal
doctrine.
iii. If the appellate court reverses and remands the case to the lower court for
a new trial, many defendants will be convicted a second time.
iv. Neubauer (1991) found that defendants convicted of nonviolent offenses
and who received a relatively lenient sentence were the most likely to win
See Assignment 4
IV. Postconviction Review
Learning Objective 10: Compare and contrast appeals and postconviction review
processes.
A. After the appellate process has been exhausted, state as well as federal
B. Although they are filed by prisoners who have been convicted of a criminal
offense, they are technically civil matters. Thus, they are usually filed against
a prison warden or the chief administrator of a state’s department of
corrections.
C. How Postconviction Remedies Differ from Appeals
i. Postconviction remedies differ from appeals in several ways that have
important implications for the criminal justice system.
ii. First, they may be filed only by those actually in custody.
iii. Second, may raise only constitutional defects, not technical ones.
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before the court.
vii. Originally, habeas corpus was regarded as an extraordinary means to
determine the legality of detention prior to trial, but the great writ of
liberty has undergone considerable transformation in recent decades.
D. Judicial Expansion and Contraction of Habeas Access for State
Prisoners
i. In the 1950s and 1960s, the U.S. Supreme Court greatly expanded the
application of habeas corpus, making it much easier for state prisoners to
E. Congress Greatly Restricts Habeas Access in 1966
i. For more than two decades Congress considered proposed changes in
habeas corpus proceedings (Smith, 1995). The debate was shattered by
ii. Thus, as the 1996 elections loomed, Congress passed the Antiterrorism
and Effective Death Penalty Act. The act created one-year deadlines for
filing habeas petitions; limited successive petitions; restricted the review
certiorari to the Supreme Court.
iii. A unanimous Court held that the law was constitutional in Felker v.
Turpin (1996).
iv. Violations of state law are not valid grounds for a habeas action unless
such violations are of constitutional magnitude. Prisoners must exhaust
all available state remedies before a federal court will consider their
constitutional claim on habeas corpus.
v. Federal habeas corpus review may also be prohibited if a defendant is
F. Habeas Corpus Relief for Federal Prisoners
i. In 1948, Congress enacted a statute that was designed to serve as a
substitute for habeas corpus for federal prisoners. The primary purpose of
the statute was to shift the jurisdictions of the courts that heard habeas
corpus applications.
ii. Section 2255 relief may only be granted if a violation of federal law
caused a “fundamental defect which inherently results in a complete
V. Wrongful Convictions
Learning Objective 11: Identify the leading causes of wrongful convictions.
A. One might think that the appeals and postconviction review processes would
routinely correct situations in which a defendant was wrongfully convicted,
but that is unfortunately not always the case.
B. However, since 1989 over 329 inmates have been exonerated by DNA
C. How Many Wrongful Convictions Are There?
i. As a result of these exonerations—and media portrayals of them—nearly
40 states have changed their laws to allow for appellate or postconviction
review on the grounds of actual innocence, especially when supported by
new DNA evidence (Zalman, 2006).
ii. The federal government similarly enacted the Innocence Protection Act
of 2004, which expands judicial review of convictions on the basis of
evidence that tends to exonerate.
iii. Using different methods (each with their own flaws), estimates of the rate
of wrongful convictions range between a low of 0.5 percent and a high of
15 percent, with between 1 percent and 3 percent being the estimate with
the most empirical support (Zalman, Smith, & Kiger, 2008).
D. Why Do Wrongful Convictions Occur?
i. One of our leading sources of knowledge about wrongful convictions
ii. An examination of wrongful conviction cases reveals the following
primary causes: mistaken eyewitness identifications; improper forensic
E. Reducing Wrongful Convictions
i. There are various methods that combat wrongful convictions, including
changing the ways in which pretrial identifications are conducted to
ii. In light of the 2009 NAS report on forensics, courts should rigorously
apply Daubert to exclude or limit the use of unreliable forensic
techniques.
iii. Judges should admit expert testimony from witnesses who specialize in
the ways in which memory, perception, and even a variety of crime-scene
variables can affect the reliability of eyewitness identifications (see State
v. Clopten, 2009).
iv. State high courts of last resort should be more active in disciplining
attorneys who engage in misconduct in the course of criminal
prosecutions in both state and federal courts.
v. Without corroboration, courts should exclude “snitch” testimony as
unreliable and unduly prejudicial under Rule 403 of the Federal Rules of
Evidence and its state-law counterparts.
vi. Finally, appellate courts need to be more aware of the ways in which the
leading causes of wrongful conviction interact with each other—
especially when applying the harmless error rule.
Class Discussion/Activity 4
What causes of wrongful convictions were identified in the chapter? What
solutions have been recommended? Be sure to discuss solutions that should be
implemented for other criminal justice agencies and for the courts.
See Assignments 5 and 6
VI. State Courts of Last Resort
Learning Objective 12: Analyze how state courts of last resort and the U.S.
Supreme Court exercise their discretion to set justice policy.
A. Law on the Books: State High Courts and Discretionary Dockets
i. In states that have not created intermediate courts of appeals, the
responsibility for appellate review falls directly on the state court of last
resort. In such circumstances, the state’s highest court finds itself
ii. By contrast, in the District of Columbia and in the 40-some states that
have created intermediate courts of appeals, it is the intermediate
appellate courts that are primarily concerned with error correction. This
leaves the state’s highest court free to devote more attention to cases that
raise important policy questions (Scott, 2006; Tarr & Porter, 1988).
iii. The high court exercises its considerable discretion to carefully select the
disputes in which it will participate, usually for reasons of advancing
public policy.
B. Law in Action: State High Courts as Policymakers
i. In recent years, state high courts have become important policymakers in
a number of contentious areas, such as tort reform, same-sex marriages,
and parental rights in divorce cases.
ii. Applying U.S. Supreme Court decisions is one way that state high courts
participate in policymaking.
iii. Interpretation of state constitutional provisions is another way that state
supreme high courts act as important government policymakers.
iv. The phrase “new judicial federalism” refers to the movement in the state
v. Researchers have identified hundreds of state high-court decisions that
interpret state charters as more rights-generous than their federal
counterpart (Bloom & Massey, 2008; Fino, 1987).
C. Law in Controversy: State High Courts and Death Penalty Cases
i. State courts of last resort reveal pronounced differences in their handling
of death penalty cases. The differences between state courts of last resort
responses to death penalty appeals are not random. For example, justices
in states with competitive judicial elections are more likely to uphold
death sentences (Brace & Hall, 1997; Brooks & Raphael, 2003).
What If Scenario
What if you were an attorney and were going to argue a death penalty case before
a state supreme court. How would you go about researching the case? What
information would you need to know? What documents would you need?
VII. The U.S. Supreme Court and Criminal Justice Policy
Learning Objective 12: Analyze how state courts of last resort and the U.S.
Supreme Court exercise their discretion to set justice policy.
A. The jurisdiction of the U.S. Supreme Court is almost exclusively
discretionary; that is, it can pick and choose the cases it wants to hear, and
the Court passes on the vast majority of cases it is presented with. Scholars
refer to court eras according to the chief justice.
B. The Warren Court (1953–1969)
i. The Warren Court (1953–1969) commands attention because, in the areas
of civil liberties and civil rights, it remains the benchmark against which
subsequent periods of the Supreme Courts are measured.
ii. The Warren Court revolutionized constitutional law and American
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C. The Burger Court (1969–1986)
i. Although the Burger Court (1969–1986) was more conservative than its
predecessor, the vast majority of the Warren Court decisions were
upheld, which was a victory for civil rights and therefore a victory for all
Americans.
D. The Rehnquist Court (1986–2005)
i. The Rehnquist Court (1986–2005) was quite conservative. The Court cut
back abortion rights, condoned mandatory drug testing, and permitted
capital punishment for juveniles and developmentally impaired persons
convicted of murder.
E. The Roberts Court (2005–)
i. The Roberts Court (2005–present) appears to lean slightly conservative,
if not on par with the Rehnquist Court: “Empirical scrutiny of the Court’s
ii. The Court appears to be in a state of “relative continuity,” upholding
decisions of the Rehnquist Court and not making any drastic policy
changes of its own (Epstein, Martin, Quinn, & Segal, 2007, pp. 651–652).
The difference, however, is that Justice Kennedy has replaced Justice
Sandra Day O’Connor as the Court’s key swing vote.
iii. The future direction of the Court will depend on the political balance
between the President and the U.S. Senate.
Media Tool
Read the information at The Court and Constitutional Interpretation at the
Supreme Court of the United States website:
See Assignments 7 and 8
VIII. The Supreme Court in Broad Perspective
A. The decisions of the Supreme Court swing back and forth much like a
pendulum. These swings reflect major political movements in the nation.
B. This occurs because of the swing of electoral politics; presidential
appointments control the composition of the bench and may temper the
speed, if not shift the direction, of the Court.
C. More indirectly, public opinion also affects the justices and may serve to curb
them when they threaten to go “too far” in their rulings.
D. The Court generally shifts direction gradually, incorporating and
accommodating the views of new appointees.
E. Ultimately, these long-term trends, more than individual decisions, have the
most influence.
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KEY TERMS
affirm: In an appellate court, uphold the judgment of the lower court.
amicus curiae: Latin for “friend of the court,” this is a brief that various nonparties may
file to influence an appellant court’s decision making; these briefs are commonly filed by
appellant: The losing party in the lower court that seeks to overturn the decision of a
lower court by appealing to a higher court.
appellate brief: Written statement submitted by the attorney arguing a case in court.
appellate court record: The transcript of the trial along with relevant court documents.
appellee: The winning party in the lower court, against whom a case is appealed.
Burger Court: The Supreme Court under the leadership of Chief Justice Warren Burger
(1969–1986).
collateral attacks: Postconviction challenges to a conviction on limited grounds, these
remedies which seek to avoid the effects of a court decision by bringing up a different
court proceeding, they are technically civil matters.
concurring opinion: Judges who vote with the majority of an appellate court may
contemporaneous objection rule: Rule requiring that in order to raise an issue on appeal
the attorney must have timely raised the objection at trial or the objection will be deemed
waived.
discretionary appellate jurisdiction: Jurisdiction that a court may accept or reject in
particular cases. The Supreme Court has discretionary jurisdiction over most cases that
come to it.
dissenting opinion: An opinion written by a judge of an appellate court in which the
judge states the reasons for disagreeing with the majority decision.
double jeopardy: Fifth Amendment prohibition against a second prosecution of the same
person for the same crime by the same sovereign after the first trial.
error: A mistake made during the trial.
error correction: Appellate courts seek to correct legal errors made in lower courts.
habeas corpus: Latin phrase meaning “you have the body”; a judicial order to someone
holding a person to bring that person immediately before the court.
harmless error: An error made at trial that is insufficient grounds for reversing a
judgment.
informants: People who are not in law enforcement but provide information to law
enforcement.
interlocutory: Provisional; temporary; while a lawsuit is still going on.
mandatory appellate jurisdiction: Jurisdiction that a court must accept. Cases falling
new judicial federalism: Movement in state supreme courts to reinvigorate states’
constitutions as sources of individual rights over and above the rights granted by the U.S.
Constitution.
notice of appeal: Written document filed with the clerk of court stating that the
defendant in the criminal case plans to appeal.
opinion: The reasons given for the decision reached by an appellate court.
oral argument: The part of the appellate court decision-making process in which
lawyers for both parties plead their case in person before the court.
per curium opinion: Decisions written “by the court” without attribution to a specific
judicial author.
petitioner: An appellant who has lost a first appeal and is seeking another appellate
review.
plain error: A plain error is a defect seriously affecting substantial rights that are so
Rehnquist Court: The Supreme Court under the leadership of Chief Justice William
Rehnquist (1986–2005).
respondent: The winning party in the lower court.
remand: In an appellate court, to send a case back to the court from which it came for
further action.
reverse: In an appellate court, to reach a decision that disagrees with the result reached in
the case by the lower court.
appeal, which the upper court must hear.
Roberts Court: The Supreme Court under the leadership of Chief Justice John Roberts
(2005–present).
standard of review: Refers to how much deference an appellate court will give to the
proceedings and decisions that took place in the court below.
tunnel vision: When police, prosecutors, and forensic analysts become convinced of a
conclusion, such as the guilt of a particular suspect, the more likely they are to only focus
on factors that support that conclusion while conversely, the less likely they are to
consider alternative explanations.
LECTURE NOTES
The appeal process is offered to those who lose their court cases and are afforded the
opportunity to appeal the verdict. It is important to recognize the process of appeal that a
defendant is required to follow and understand why each element in the process is
The Warren Court expanded opportunities for indigent persons to be able to appeal their
cases. The case of Gideon v. Wainwright was a landmark case that’s still used today to
teach the effects of allowing indigents the right to counsel and the right to the appeals
process. Discuss the significance of the appeals process to indigents, and show how the
Warren Court began taking a stance toward allowing equal treatment to all defendants.
Although every loser in court has a right to one appeal, this right is greatly restricted, and
An appeal can have many different outcomes. The process of review by a higher level
court and the finding determines the fate of a case, based on decisions that were made in
a trial. Recognize each individual outcome, including affirmation, modification, reverse,
reverse and remand, and remand. Discuss the differences and the propensity for each to
occur.
Wrongful convictions are a serious problem particularly in the area of the death penalty.
Discuss the reasons for wrongful convictions and the suggestions for preventing them.
POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS
1. When lawyers think an error is being made at trial, they must object in order to give
the trial court judge the opportunity to correct the error. If the attorneys fail to object,
2. If an error is substantial it is called a reversible error, and if it is minor, it is called a
harmless error. The distinction means that an appellate court may affirm the lower
court decision in the face of a harmless error but if the error is significant it is
3. Numbers of appeals have increased with increases in severity of punishment, greater
use of incarceration, current requirements for effective assistance of counsel.
4. Causes of wrongful convictions include: mistaken eyewitness identification; improper
forensic evidence; false confessions; unreliable informants; tunnel vision and
misconduct by justice professionals; and inadequate defense representation. Ways to
combat wrongful convictions in other areas of criminal justice include changing the
ASSIGNMENTS
1. “Should We Do Away with the Double Jeopardy Rule?”
• Assignment: Have students read the arguments for and against the abolition of
the double jeopardy rule. What is the strongest argument? After reading the
arguments for and against abolition, what is your stance? Why?
2. Describe the six customary phases in the appellate court process. Research the
3. In a bulleted list, define each of the appellate standards of review. Under each bullet,
4. Describe the differences and similarities between appellate court review and
postconviction review processes. What is the process for appellate court review in
your state? Discuss this in your classroom.
5. Research the law in your state allowing for postconviction review on the ground of
6. “Causes of Wrongful Convictions”
• Death Penalty Information website
• Assignment: Have students read the information available on the website
regarding causes of wrongful convictions. In your opinion, which is the most
egregious cause of wrongful convictions? If you could implement a change to
the criminal justice system to impact this problem, what would it be?
7. Research the justices on the court(s) of last resort in your state. Do they have a
reputation for being conservative or liberal? How long have they been on the court?
What are some of the significant decisions the court has made in the last year? Write
8. “Impact of Court Decisions”
• United States Supreme Court website
• Assignment: Have students research a recent criminal justice case that had an
impact on policy. In what way did the Court impact criminal justice policy?
What agencies of the criminal justice system will be most affected by the
decision? Describe the ways in which these agencies will be affected.