What to know about a criminal appeal

Happy Friday everybody. I hope you’re having a great week and looking forward to the weekend like I am. I wanted to talk to you today about something that comes up in a lot of my consultations, and that is specifically in reference to people that come in and they want to appeal their case. Whether it’s a relatively new case or relatively old case, we take consultations all the time for people that want to appeal the decision that was made in their case, which is fine. We do a ton of appellate work. James Whalen, the firm owner, is board certified in appellate law as well as criminal law. So it’s something that we’re comfortable with. We’ve appealed cases to every different level of court here in Texas. We’ve appealed cases to every level of appellate court in the federal system all the way up to the Supreme Court. So it’s something that we can certainly do and help with.

But it would be very helpful if the folks coming in had at least somewhat of a grasp of what an appeal of a case can do and can’t do because a lot of times there’s confusion there and we spend a good amount of time of the consultation trying to explain that to them. So the first thing that a client needs to know, and if you’re one of my lawyer friends that watches these, you’ll probably know this, but explain this to your clients when you refer them over, is when you’re appealing a case, that is not the same thing as asking for a new trial or being granted for a new trial. What I mean by that is an appeal is not something that you can use to show a bunch of new evidence to the appeals court that should have been shown to the trial court level or to the jury, okay?

There are certain exceptions if what you have is considered newly discovered evidence. If it’s some evidence that there was no way you could have possessed when your case went to trial, then you can bring it up at the appeal stage. But normally speaking, an appeal is not a place for you to relitigate whether or not you were guilty or innocent, okay? In the sense that most people think. An appeal is constrained to arguing about legal errors that occurred during your trial. So objections that were made that the judge ruled on incorrectly, evidence that should have been excluded but was admitted anyway, evidence that should have been admitted but it was excluded by the judge’s ruling, jury selection issues. That sort of thing is really what you’re focusing on when you’re appealing a case.

So along those lines, there’s a couple of things that you as watchers of this can help with if you’re coming in for a consultation or if you’re representing people who you will then refer to us to handle their appeal. First off, if you’re coming in, kind of know that. So know that when I’m telling you and I’m giving you the answer that, look, I understand that you think this witness should have been called that your lawyer didn’t call them, there’s not much I can do about it on appeal. So just understand that and know that that’s not me telling you you have no rights to try to argue that point. It’s just not going to go anywhere.

And then second, if you’re a lawyer, make sure that if you’re taking cases to trial or if you’re in contested hearings, be it an open plea or a sentencing hearing or something like that, preserve everything. Preserve errors even if you think the judge is getting them right. Even if you think it’s a long shot that we win this objection, make the objection, because it gives us so much more wiggle room to actually file an appeal and have an issue to present when we have these objections that were ruled upon that we can then argue there might’ve been a legal error because it might be an error that you are unaware of, that the judges aren’t aware of, that the prosecutors aren’t aware of, but because there’s this new case law out there, this case that nobody was aware of at that time, we’re able to bring that issue up on appeal.

But if you don’t make the objection, if you don’t preserve that error, then that stuff just gets waived. And unfortunately, we have to tell these clients that there’s just nothing we can do to help them. So if you’re a lawyer, make sure you’re preserving that error. If you’re a client who wants to take your case up on appeal, it’s certainly something that we can help with. Just know that we’re going to be limited in the type of relief that we can look for. And we’ll go over that with you in detail as to what we can and can’t do, but I wanted to give you some background because there has been a lot of miscommunication and misconceptions about what an appeal actually is.

Hope you all had a great week. Have a good weekend. I look forward to seeing you guys again next week. And as always, if you have any questions or any topics or anything that you want to see me discuss on a video like this, send me an email. I’m happy to answer them and I’ll make a video that’s going to be helpful for you guys because I want to know what you want to see. Have a good weekend, and we look forward to seeing you all soon.