Decisions may not always go your way, but when they don’t and the stage is the judicial system, the consequences can be grim. While losing a criminal defense can be heartbreaking, you may have options. If you disagree with a decision of a lower court, or believe that the final outcome was the result of an error, you may have possible grounds for an appeal, which is a request for a higher court to review your case.
Notice of Appeal
A case is ready for appeal once an order, decree or judgment has been entered and there is nothing left to litigate. The first step in the appeal process is filing a notice of appeal in the court that rendered the judgment. Generally, you have 30 days from the judgment to file this notice. Once filed, the right to appeal is now preserved.
If you miss the 30 day deadline, but less than 60 days have passed since the judgment, you can file the notice of appeal in the trial court with a motion to late-file. You must show a good reason as to why you should be allowed the late filing. If you pass the 60 days, you must file the notice of appeal with the Appeals Court in Boston, along with a motion to late-file. If more than a year passes since the judgment, you permanently lose your appellate rights.
Building the Trial Record
Once the notice of appeal is filed, the record of the case must be assembled in the clerk’s office and sent to the Appeals Court and to your new attorney. The record, made up of the trial transcript, docket sheet and other papers, tells your lawyer and the new judges what happened at trial. No outside information, such as a new witness, will be considered on direct appeal.
Issues to Brief on Appeal
Your new attorney will take a look at the record and try to find issues in the case; examples include flawed jury instructions, prosecutorial misconduct, insufficiency of proof and denials of motions to suppress. The issues that are found are then developed and briefed by a certain deadline, established by the Appeals Court. Once your lawyer files your brief, the opposing attorney must produce a brief as well.
Once both sides file their briefs, the case is assigned to a panel of 3 appellate judges. Depending on circumstances, the case can either go straight to deliberation or get marked up for an oral argument first (the latter occurs most of the time). In the oral argument, you get about 15 minutes to present your case. The court then takes the case under deliberation, where they make their final decision.
If you win on appeal, you must follow the instructions given in the case, whether it’s to return back to trial court or do nothing else. The losing side may be able to ask the Supreme Judicial Court to look at the case, but most of the time, these applications are denied. If you lose, you can apply for Further Appellate Review, although the chances of having your application accepted are slim.