Federal criminal appeals are difficult to understand, so this blog is going to address one of the common misconceptions. A main misconception is that a federal criminal appeal or, more specifically, a ‘direct’ appeal, is an opportunity to re-address or re-open the facts that were presented at trial. It is definitely not that at all! In fact, an appeal and a trial essentially have nothing in common other than the defendant and the prosecuting entity.

NOTE: Every defendant’s case is different; we encourage you to reach out to our office to schedule a free phone consultation to discuss the specifics of your loved ones’ case with our knowledgeable and compassionate staff.

What Is a Federal Criminal Appeal?

Essentially, it is a legal proceeding by which the judgment (or order) of the court – usually a district court – is attacked on some legal grounds, such as errors, omissions or misconduct. The defendant or his/her attorney files written ‘briefs’ (which are rarely brief). These briefs claim that certain errors warrant the reversal of a conviction or, at the very least, a reduction of a sentence. The government then has an opportunity to respond with their brief. In a few cases, the appellate court may hear oral arguments from both sides to clarify points raised in the briefs. This process often takes months (and in a few cases, it can take years) from start to finish. 

What Happens During the Appeals Process?

During the appeal process, the appellate court will review the records of the prior court’s proceedings to determine whether there are adequate grounds to grant the appeal. These ‘proceedings’ occur almost entirely in writing. Each side files briefs raising and responding to legal errors alleged to have taken place in the district court. 

The records that are reviewed include all pre- and post-trial motions, all evidence admitted to the court and a word-for-word transcript of the trial. In many cases, the evidentiary documents and physical evidence are actually transported to the site of the appellate court. This is done so that the court can examine them first-hand as it considers the legal arguments. In addition to reviewing these materials, the appellate court will also review the written briefs submitted by each party. As mentioned above, in a very few number of cases, oral arguments from counsel will be heard to clarify any points raised by the written briefs. 

Because the entire proceeding is mostly virtual, appellate courts are not courts ‘of record’. That means there are no official court reporters, no witness stands and no juries, nor are they fact-finding courts. Generally, appellate courts do not receive evidence or testimony. Instead, they review, consider and resolve legal arguments AFTER the facts of the case have already be received, reviewed and judged in the district court. 

How Long Does the Appeals Process Take?

If you are into immediate results, you are likely going to be frustrated by the federal criminal appeals process. In general, federal criminal appeals take quite a few months, if not a year or even longer. You might be asking, “Why does the federal criminal appeals process take so long?”.

Consider this: the federal courts can be crowded, and the process of an appeal – by its very nature – is a slow one. The courts consider each case carefully and individually, which takes time. Even though technology has helped to speed up some of the process (many courts accept briefs electronically), there is no technology that can make the core tasks of deliberation by the individual judges go faster.

Each judge must carefully read, research and ponder the arguments of both sides. And judges are human, after all, and and only work so many hours a week. Even with a hoard of staff members to help them, the ultimate decision must be rendered by the judge. The stark reality is that anyone judge might have hundreds of cases to process, and so it just takes time.

As an attorney who has been dealing with the federal criminal appeals process for more than a decade, I can tell you that even though I warn my clients that the process can take a year or more, it’s still a surprise to them when it does.

Statistics from the Office of the U.S. Courts indicate that most appeals take 12 – 18 months. There are some circuit courts in which an appeal takes 9 months on average, and some circuit courts in which an appeal takes 18 months.

REMEMBER: Every defendant’s case is different; contact our office to schedule a free phone consultation to discuss the specifics of your loved ones’ case with our knowledgeable and compassionate staff.