The Criminal Appellate Law Firm You Can Trust

An “appeal” is when you formally seek review from a higher court for legal errors after a final judgment. Therefore, only a criminal defendant who has been subject to a “final judgment” can file for an appeal with the intermediate courts of appeal. A final criminal judgment is when someone has been convicted of a crime and sentenced.

If someone files for review with the courts of appeal prior to a final judgment, they must apply for a supervisory writ, not an “appeal.” The main difference is that a court of appeal must accept and consider a properly filed appeal and the issues raised in that appeal.

However, an appellate court has “discretionary jurisdiction” regarding supervisory writs, which means the court does not have to grant the writ application and consider its contents if the court decides to deny the writ. Sometimes, the appellate court will grant the writ and still deny the relief sought by the applying party.

The Louisiana Constitution expressly states, “In criminal cases [a Court of Appeal’s] appellate jurisdiction extends only to questions of law.” La. Const. art. V, § 10 (emphasis added). This means that in Louisiana the Courts of Appeal and Supreme Court cannot second guess “questions of fact.”

What is the difference between questions of law and questions of fact?

The credibility of a witness is a crucial fact to consider. Whether a jury should believe a witness, even if you think they are lying, is exclusively the right of the jury or fact-finder to decide. In other words, how much “weight” to give one witness’ testimony over another is a fact-determining factor. Thus, a Court of Appeals judge who did not get to sit and watch a witness testify CANNOT reverse a reasonable jury’s determination to believe a witness’ testimony. This occurs often in the common “he said, she said” scenario. If Witness 1 is saying one thing and Witness 2 is saying something different, a jury’s determination to believe Witness 1 and not Witness 2 cannot be overturned on appeal.

A question of law, however, CAN be reviewed. This means that if a judge makes a wrong ruling on a legal issue (motion to suppress, objection for hearsay, jury instruction, etc.), the appellate court can review that issue and overrule the judge. Depending on the impact that ruling had on the overall outcome of the case, this could lead to a reversal of a conviction and a new trial being granted.

Think: Is the issue being reviewed asking to overturn the judge’s legal ruling or a jury’s finding of guilt or credibility? If you are asking to overturn a jury’s finding of fact, then that is not an appealable issue.

Somewhat confusing for laypersons is the caveat to this, which is a ruling on the sufficiency of the evidence. If a jury finds someone guilty, they have implicitly found there was sufficient evidence of guilt. However, “sufficiency of evidence” is technically not a fact question but instead a legal question governed by the Jackson Standard.

The Jackson Standard, which comes from Jackson v. Virginia 443 U.S. 307 (1979), and has been adopted in Louisiana, states that when viewing the evidence in a light most favorable to the prosecution, could a reasonable jury have returned a guilty verdict?

In essence, what this is really asking is: did the state offer ANY evidence for every element of the crime? If no, then a reasonable jury could not find someone guilty (example: no evidence of a dangerous weapon used in an aggravated battery case, even though there is clear evidence of battery). If yes, then the conviction will be upheld.

The Jackson Standard is a very high bar to justice for a criminal defendant. It only asks for the “sufficiency” of the evidence, not the “weight” of the evidence, which is a fact issue.

Once a criminal appeal is filed, it takes time to be resolved. Below are the general steps, each taking significant time to complete:

1. After a final judgment, defense counsel must file a Notice of Appeal and Designation of the Record
2. The court reporter must transcribe all hearings listed in the Designation of the Record
3. The clerk of court for the trial court will compile the official appellate record, which will include the transcripts, written motions, exhibits, clerk of court minutes, etc.
4. The appellate record will “lodge” with the Court of Appeals
5. The Court of Appeal will send out a notice of lodging to all counsel of record and issue a due date for the appellant and appellee briefs.
6. The attorney for the appellant (defendant) will review the record and draft a brief raising all legal issues for review that are relevant to the case
7. The attorney for the appellee (State) will review the record and answer the appellant’s brief
8. Clerk of Court for the Court of Appeals will assign the case to a three-judge panel, which is randomly selected
9. If the case is set for Oral Argument, the judges and attorneys will prepare to discuss the case at oral argument
10. If the case is not set for Oral Argument, the case will be “submitted on the briefs” to the three-judge panel for review
11. A panel of judges will meet in conference and discuss the case, review the law, vote on an outcome, and assign one of the judges to write the majority opinion, which must have at least 2 votes in support of that position. If one judge disagrees with the majority, they may draft a “dissenting opinion.” Any judge is free to agree in part with the majority, or for different reasons, and draft a “concurring opinion” expressing where they agree and differ from the majority opinion.
12. Clerk of Court for the Court of Appeals will release the decision on its website and send hard copies to the parties

If a criminal defendant/appellant loses their direct appeal of right to the Court of Appeals, they must decide how to proceed. There are several options:

• Do nothing – the appeal will become final 30 days after the opinion is officially released. All appeal rights are over.
• File an Application for Rehearing – within 15 days of the opinion, the losing party may file an application for rehearing, which should be used sparingly and mainly when it is obvious the Court ignored a key fact or misconstrued a party’s position.
• File an Application for Supervisory Writs with Louisiana Supreme Court – within 30 days of the Court of Appeal’s decision (either the original appeal, denial of rehearing, or ruling on the merits of rehearing), a party may seek review with the Louisiana Supreme Court. Its jurisdiction is discretionary as well, and the Court only grants review in exceptional circumstances.

There may be other procedural filings that are possible, including a motion for rehearing of the Louisiana Supreme Court’s ruling (only if they grant the writ and issue a ruling on the merits) or a Petition for Writ of Certiorari to the United States Supreme Court.

Each step in this process takes time. It takes many weeks for the court reporter to type up the transcripts, for the clerk to put the record together, for the attorneys to read and research the record and write a brief, and for the appellate judges to draft an opinion. Expect this process to take up to a year, and possibly longer.

There are several possible outcomes to a criminal appeal, and they depend on the relief being sought by the parties.

In general, the possible outcomes are:

1. Reversed Conviction and Acquittal – Almost all criminal appeals will raise at least one issue on the “sufficiency of the evidence,” which essentially claims the State failed to prove each element of the crime. In the rare case where this argument is successful, the outcome is to reverse the conviction(s) and enter an acquittal instead.
2. Reversed Conviction and Remand for New Trial – If the appellate court finds a legal error that was not harmless and substantially affected the outcome of the case, the court may reverse the conviction and remand the case back to the trial court for a new trial. The logic is that “but for” the erroneous legal ruling by the trial court (i.e., ruling on a motion, objection, etc.), the outcome of the trial could have been different. Thus, the case is remanded for a new trial to be conducted without the bad legal ruling.
3. Change or Remand for a New Sentence – Sometimes the parties will argue that a sentence is excessive or legally incorrect (i.e. longer than statutorily allowed, does not offer probation or parole when it should, etc.). Depending on the particular issue, the court may have the power to change or correct a sentence. However, in most cases, the appellate court will only note the legal error and remand the case to the trial court for a new sentence to be imposed, but one that avoids the same legal error.
4. Remand for a Factual Hearing – In rare occasions, an issue is raised on appeal where the appellate record is incomplete. Depending on the issue, some courts will remand the case for a narrow hearing on a legal issue so the court of appeals can fully understand what happened before issuing a ruling. Again, this is very rare.

There may be other possible outcomes of a criminal appeal, but they are highly fact-specific.