What is an appeal?
An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because post-trial motions requesting trial courts to change their own judgments or order new jury trials are so seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court's sentencing decision without actually challenging the underlying conviction.
What are the chances that my conviction will be reversed?
Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed "perfect" trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed "harmless," and consequently few convictions are reversed. However, some types of errors are so grievous that they are presumed harmful, such as the use of a coerced confession in violation of the 14th Amendment.
Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.
What is a writ?
In most modern American jurisdictions, a "writ" is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts -- an intermediate appellate court and the state supreme court.)
Writs, like appeals, are complex and involve picky details. Defendants facing situations where they may be entitled to take a writ should consult counsel.
What's the difference between a writ and an appeal?
Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general rule, this applies to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense).
Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):
The defense did not lodge a timely objection at the time of the alleged injustice (but should have).
A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense.
The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court.)
The defendant has already lodged an unsuccessful appeal (defendants may file multiple writs but the right to appeal is limited to one). But filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately.
What is a writ of habeas corpus?
Defendants who want to challenge the legality of their imprisonment -- or the conditions in which they are being imprisoned -- may seek help from a court by filing an application for what is known as a "writ of habeas corpus."
A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the U.S. Constitution, which specifically forbids the government from suspending writ proceedings except in extraordinary times -- such as war.
Known as "the Great Writ," habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months -- even years -- without charging them, and those imprisoned have no avenue, no legal channel, by which to protest or challenge the imprisonment.
The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy with their writs.
| Potential Post-Conviction Remedies | Convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals, and writs. The following list illustrates these steps. - Motion for acquittal. Request that the judge decide that there is not enough evidence to convict the defendant.
- Motion for a new trial. Request that trial judge declare a mistrial and grant a new trial.
- Appeal to state appellate court. Contends that trial judge made some legal error.
- Petition for rehearing to state appeals court. Requests that appeals court judges change their own decision.
- State supreme court appeal. Requests that highest court in the state review and overturn the decision of the mid-level appeals court.
- U.S. Supreme Court appeal. Requests that highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution.
- State court habeas corpus petitions. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that the defendant is being held in violation of some state law or constitutional right.
- Federal habeas corpus petition. Requests the federal trial court to order the jail or prison holding the defendant to release the defendant because the defendant is being held in violation of the U.S. Constitution.
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