What further legal options are available to a person once convicted?

A defendant has a constitutional right to appeal his conviction and/or his sentence to an appeals court. The defendant's attorney petitions the appellate court to overturn the defendant's sentence because of error committed during the trial court process.

What are some commonly alleged errors in criminal trials?

Some errors that are used concern a trial judge's exclusion or admission of certain evidence, failure to give a particular jury instruction, or failure to consider mitigating factors when imposing a sentence. Other arguments often advanced are that the prosecutor made improper statements during his closing argument, that the trial court failed to adequately protect the defendant's constitutional rights by failing to exclude certain evidence, and that the jury's verdict was against the weight of evidence.

Is there a time limit on appeals?

Yes, there is a strict time limit for appeals. The time period begins to run (or toll) when the trial court enters a final judgment. Often the time period is 45 days or 90 days depending upon the jurisdiction.

What is the record?

"The record" refers to the trial court proceedings that are gathered together and filed before the appellate court. "The record" will usually consist of a transcription of the trial record, exhibits in the trial court, and various pre-trial and post-trial motions filed in the case. There must be a sufficient "record" before the appellate court so that the appellate court can determine whether the lower committed error during its proceedings.

What is an appellate brief?

If the defendant appeals his or her sentence, he is called the appellant (the person who appeals). The government then becomes the appellee (the person defending the original conviction or sentence). The defendant-appellant must file a brief that explains why the lower court erred during the trial process. The government-appellee will then file a brief that rebuts the defendant's arguments and defends the rulings of the trial court.

A convicted person can appeal the decision made in his or her case if the appelant feels adequate representation was not provided, or that the court made some sort of error (iStock).

A convicted person can appeal the decision made in his or her case if the appelant feels adequate representation was not provided, or that the court made some sort of error (iStock).

Note that the word "brief" in this context is a misnomer, as briefs are often many pages long. Appellate courts have strict rules on the content of briefs, which is why many trial attorneys refer appeals to appellate lawyers—those lawyers who have special expertise in the appellate process.

What is the direct appeal?

Direct appeal refers to the appealing of the underlying criminal conviction or sentence in a higher court. The direct appeal process consists of appealing to all higher courts of the original conviction or sentence. Once the highest court has affirmed the conviction or sentence, then the direct appeal process has finished. Then, the defendant's only option is to file a petition for post-conviction relief.

If an appellate court reverses a trial court, what happens next?

This depends on the ruling of the appellate court. An appellate court could find that a trial court erred in admitting certain evidence that was prejudicial to the defendant. The trial court would then order that the prosecution afford the defendant a new trial. If the appellate court determines that the trial court erred in the sentencing phase of the trial, it might send the case back down to the trial for re-sentencing.

What is a post-conviction proceeding?

A post-conviction proceeding is a proceeding provided for in state court that enables a defendant to challenge the constitutionality or legality of some aspect of the trial court proceeding. It is called a post-conviction proceeding because it occurs after the conviction and after the direct appeal process. In many states, it is a statutory, not a constitutional, right. There are generally time limits on when a defendant may file a state post-conviction proceeding.

If a direct appeal process and the state post-conviction process both fail, are there any other legal avenues?

Yes, there is another important legal avenue and that is seeking a writ of habeas corpus in federal court. "Habeas corpus" is a Latin term literally meaning "you have the body." In a writ of habeas corpus, a defendant collaterally challenges his underlying conviction (often in state court), alleging that there were constitutional violations committed during his trial.

For example, a defendant may allege that his underlying conviction should be overturned because his Sixth Amendment right to receive assistance of counsel was denied. This is often called an "ineffective assistance of counsel" claim. Or the defen-

LegalSpeak: Strickland v. Washington (1984)

The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases—that is, those presenting claims of "actual ineffectiveness." In giving meaning to the requirement, however, we must take its purpose—to ensure a fair trial—as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result....

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

dant may show that the prosecution unlawfully refused to disclose exculpatory evidence over to the defendant's attorney. Or the defendant may contend that the trial judge violated the defendant's due-process rights by holding the proceedings in a manner fundamentally unfair to the defendant.

What is ineffective assistance of counsel?

Ineffective assistance of counsel is a constitutionally based claim under the Sixth Amendment in which a defendant asserts that his legal representation was so poor that he did not receive "assistance of counsel" within the meaning of the Sixth Amendment. This is a difficult burden to meet.

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