10 Things You Should Know About Federal Criminal Appeals, Part 1 of 2

Federal appellate courts are a mystery to many defendants and even some criminal defense attorneys because the judges and their staff largely work in secret, with oral arguments being the only time these courts are open for public scrutiny.

Here are the first five of 10 things you should know about the inner workings of the federal criminal appeals court:

  1. A federal criminal appeal is not a retrying or rehearing of the evidence developed at trial. The purpose of a federal criminal appeals court is to decide if legal errors have been made by a lower court. The appellate court will review and decide upon the facts of the case as they exist; it will typically not consider new evidence.
  2. A Notice of Appeal is different than an Appeal. A notice of appeal simply informs the district court and the appeals court that an appeal is being pursued. It is a short document, and must be filed within 10 days of the entry of the order or judgment that is being appealed. Many people mistakenly believe that the appeal itself must be filed within this 10-day period, causing understandable panic. But it is the notice of appeal that must be filed in 10 days. However, if you plan to appeal, engage an appellate attorney as soon as possible because quick action is still required.
  3. Federal criminal appeals courts are typically slow. It is not unusual for a federal criminal appeal to take many months, or even a year. This is because the courts are crowded and the process itself is slow. Individual judges must review and research the case and consider the arguments.
  4. Most appeals are resolved without oral argument. U.S. Court statistics show that almost three-fourths of federal appeals cases are decided on the briefs, without oral argument. An opening brief filed by the appellant, followed by a responsive brief that is filed by the appellee and that responds to the arguments asserted in the opening brief. In most courts, the appellant has the opportunity to file a reply brief to answer the appellee’s arguments. The importance of appellate briefs cannot be understated — to succeed, appellant counsel must excel at legal research and persuasive writing.
  5. Appellants should strive for oral argument. Although most appeals are decided on briefs rather than oral argument, it is generally advantageous for appellants to have the opportunity to present an oral argument. This provides an opportunity to answer the judges’ questions about the facts or the law prior to a final decision, and most experienced appellate attorneys prefer to argue their appeals orally.

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or dan@cogdell-law.com.

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