A Brief Guide to the Federal Criminal Appeals Process

When a criminal case goes to trial the stakes are incredibly high, but a trial court case decision may not be the only opportunity a defendant has to obtain a favorable outcome.

Some form of appellate courts have been around in the United States since 1789, with the current system being established in 1891. These are known as the United States courts of appeals, or circuit courts. These courts serve designated geographic jurisdictions throughout the US and decide appeals from district courts in their federal judicial circuits.

There are thirteen courts of appeals in the US, eleven of which cover large geographic swaths of the country (three or more states each), the twelfth of which covers Washington DC, and the thirteenth of which covers the whole country and only hears cases involving certain subject matter. All of these appellate courts are one step below the US Supreme Court.

Who can file an appeal?

Following a criminal trial decision, only the defendant may file an appeal of the verdict. The government may not appeal a “not guilty” verdict of a defendant, but both the government and the defendant have the option to appeal the sentence that was imposed on the defendant. The party filing the appeal is known as the “appellant,” while the opposing party is known as the “appellee.”

The right to appeal can vary significantly from state to state, and also varies in the type of decisions and cases that can be appealed. An appeal “as of right” is a type of case that certain statutes or other legal principles explicitly state can be appealed. The courts cannot  refuse to hear an “as of right” appeal. A discretionary appeal, on the other hand, must receive permission to be filed, and it can be refused by the trial court, the appellate court, or both. In general, the grounds for an appeal usually revolve around the concept of “error.” This broad concept can refer to any number of mistakes or factors that could occur during a trial that would result in an erroneous decision or unfair procedure.

How does it work?

Unlike trial courts, appellate courts do not hear new evidence, call witnesses, nor do they conduct any new trial proceedings. Normally, a panel of three judges will review the written record of the trial as well as the legal arguments of the appellant and the appellee. Lawyers from either side of the trial case in question file these arguments, known as briefs. The appellant must demonstrate that some legal error was made in the trial court that affected the outcome, while the appellee will attempt to defend why the trial court was justified in its ruling. Normally, appeals will be decided based only on the written arguments, but the panel of judges may allow each party to present brief oral arguments to the court as well.


The panel of judges will meet and decide on an outcome for the appeal. One of the judges will write a formal opinion of the court explaining the decision, and if there is a dissenting judge he or she will write a formal dissent explaining why he or she disagrees with the appellate court’s ruling.

The court may affirm the trial court’s decision, reverse it, or remand the case which sends it back to the trial court for further action or an entirely new trial.

A vast majority of federal appeals will be final following the circuit court’s decision, but in some cases the appellant may file a “writ of certiorari” to request that the US Supreme Court hear the appeal. The Supreme Court only ends up taking about 1% of the cases they are requested to hear every year, so this is a rare option.

There are numerous other intricacies and complexities involved in filing an appeal, so please contact the Whalen Law Office for the knowledge and experience you need to achieve a victory in your federal appeal.

Author Bio

James P. Whalen

James P. Whalen is the managing attorney and founder of Whalen Law Office, a Texas criminal defense firm offering personalized legal representation for various federal criminal charges. With a commitment to providing comfort and guidance during challenging times, Mr. Whalen serves as both an attorney and counselor to his clients, helping them navigate their cases while striving to restore normalcy to their lives.

In an inherently unbalanced criminal justice system, Mr. Whalen takes on cases with unwavering dedication. With decades of legal experience, he offers representation across various criminal charges, including white-collar crimes, violent crimes, drug charges, and more. Mr. Whalen’s numerous accolades, including Super Lawyer recognition and board certification in Criminal Appellate Law and Criminal Law, reflect his unwavering commitment to ethical and high-quality legal representation.

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