If you need to appeal the outcome of a federal criminal case, you need to know that you are making informed decisions. Filing an appeal in the appropriate U.S. Circuit Court of Appeals is one of the last opportunities to achieve a just result, and mistakes can doom your appeal before it truly begins.

With this in mind, parties and their counsel need to make sure they are not relying on misconceptions about the federal appeals process. The federal appeals process is complex and relatively obscure; and, as a result, there are a lot of misconceptions out there. Relying on these misconceptions can lead to flawed decision-making, and this in turn can lead to unsuccessful federal criminal appeals.

“The federal appeals process for criminal cases is relatively unfamiliar even amongst the federal bar. In relation to the size of the bar, comparatively few lawyers handle federal criminal appeals with enough regularity to have an intimate understanding of the laws, rules, and procedures that apply.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Filing a successful federal criminal appeal requires time and resources. To ensure that these do not go to waste, it is imperative to approach the federal appeals process with an accurate understanding of the laws, rules, and procedures that apply.

10 Untrue “Facts” About the Federal Appeals Process

So, if you need to pursue a federal criminal appeal, where should you begin? Making sure you avoid uninformed decisions based on these 10 untrue “facts” is a good place to start:

1. An Appeal Provides a Second Chance To Argue the Case

Filing a federal criminal appeal does not provide a second chance to argue the case. While the focus at trial is on determining whether the prosecution is able to meet its burden of proof, at the appellate level, the focus is on whether any errors during trial prejudiced the outcome. At the federal level, judges in federal appellate courts do not review the factual record and make a determination regarding the defendant’s guilt. Instead, they review the trial proceedings that are the subject of the appeal to determine if a judicial error led to an unjust result.

While the federal appellate process is intended to provide a venue for correcting errors during trial, not all errors warrant an appeal. As Rule 52(a) of the Federal Rules of Criminal Procedure (FRCP) plainly states, “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”

2. Issues Cannot Be Raised on Appeal if Not Preserved During Trial

While it is commonly understood that issues must be preserved at the trial level in order to provide grounds for an appeal, this isn’t true in all cases. While there are important benefits to preserving issues during trial (as discussed below, parties and their counsel can challenge “unpreserved” errors in two circumstances: (i) if the error was made in a court order (see FRCP 51(a)); or, (ii) the error constitutes a “plain error” under FRCP 52(b).

As the Legal Information Institute nicely summarizes:

“Although an appellate court generally only reviews errors brought to its attention by the litigants, it has the discretion to correct plain errors that were not addressed, or forfeited, when not doing so would affect the integrity and reputation of the courts. . . . [T]his power is permissive and not mandatory.”

3. All Appellate Issues Are Subject to the Same Legal Standard

But, while it is possible to file an appeal based on plain error, appeals based on plain error are not subject to the same legal standard as those based on issues preserved at the trial level. As noted above, plain-error appeals are subject to review in the appellate court’s discretion. Additionally, when evaluating claims of plain error, the U.S. Circuit Courts of Appeal use a four-part test:

• Did the trial court commit an error or “deviation from a legal rule” that the defendant has not affirmatively waived?
• Was the error from trial court “plain,” “clear,” or “obvious” such that there is no reasonable question as to whether the error was committed?
• Did the error have a prejudicial effect on the outcome of the proceedings at the trial level?
• Did the error seriously affect the “fairness, integrity, or public reputation” of the trial proceedings or the federal district court?

4. Following a Conviction, Filing an Appeal is the Only Option

While filing an appeal is one option for seeking to overturn a criminal conviction or sentence, it is not necessarily the only option that a defendant will have available. In some cases, it may be possible to engage in motions practice at the trial level in lieu of—or perhaps as a precursor to—filing an appeal. For example, in some cases it will make sense to raise an issue in the district courts post-trial in order to preserve the issue and avoid application of the “plain error” review standard on appeal. Filing a petition for post-conviction relief will be an option in some cases as well.

5. Criminal Defendants Have 14 Days to File an Appeal

Defendants have 14 days to file a “notice of appeal.” This is very different from filing the appeal itself with the federal courts. A notice of appeal is a relatively short and largely formulaic document that simply (but crucially) preserves the defendant’s appellate rights. Once the notice of appeal has been filed, then the necessary time and effort can be devoted to identifying all viable grounds for the appeal, formulating a cohesive appellate strategy, and researching and crafting the arguments that will form the basis for the defendant’s appellate brief.

6. Effective Trial Counsel Can Successfully Argue on Appeal

Due to the significant differences between trial and appellate practice at the federal level, an effective federal trial lawyer won’t necessarily be able to provide effective legal representation on appeal. To be clear, some lawyers do handle both trials and appeals—and some do so very well. But, trial representation and appellate advocacy are different disciplines that require different skills, and a lawyer must have extensive experience in both disciplines in order to serve as effective trial and appellate lawyers in federal criminal cases.

7. Oral Advocacy Skills Are More Important than Brief Writing Skills

There seems to be a common perception that oral advocacy skills carry the day in most federal criminal appeals. But, the statistics show that this is not the case. According to the U.S. Courts website, “[m]ore than 80 percent of federal appeals are decided solely on the basis of written briefs.”

As a result, when pursuing a federal criminal appeal, it is imperative to devote substantial time and effort to crafting the defendant’s (or the appellant’s) brief rather than focusing on the oral argument. The brief should be comprehensive and concise, it should be well-organized, and it should be free from any grammatical or other errors that could detract from the merits of the appellant’s legal arguments.

8. You Won’t Win on Appeal in Federal Circuit Court

There is another common perception among many criminal defendants that filing an appeal isn’t worth it. If one federal court has already found you guilty, another federal court isn’t going to intervene and second-guess the lower court’s decision.

This simply isn’t true.

The federal appeals process exists for a reason, and U.S. Circuit Courts of Appeal will overturn criminal convictions and sentences when warranted. With that said, even if the facts are in a defendant’s favor on appeal, this does not mean that a successful result is a foregone conclusion. As discussed above, filing a successful appeal—while very possible—is not an easy process. It requires time, dedication, relevant knowledge, and relevant skills.

9. If You Lose on Appeal, Your Only Option is To File a Petition for Certiorari

This relates back to what we discussed in point four, above. If you lose at the U.S. Circuit Court of Appeals, this does not necessarily mean that your only option is to file a petition for a writ of certiorari with the United States Supreme Court. For example, in some cases it may still be possible to file a post-trial motion, such as a motion for a new trial based on after-discovered evidence. In cases involving prosecutorial misconduct, ineffective assistance of counsel, and a number of other select issues, filing a petition for post-conviction relief may be an option as well.

10. Defendants Can Handle Federal Criminal Appeals on Their Own

While there are real-life stories of criminal defendants studying the law and successfully challenging their convictions and sentences on appeal, these cases are far and away the exception to the norm. In the vast majority of cases, navigating the federal appeals process successfully requires experienced legal representation. As discussed above, mistakes can be costly—and they can prove fatal to defendants’ ability to pursue an appeal in some cases. Before making any decisions about their next steps, defendants who have received unfavorable trial verdicts should consult with an experienced federal criminal appeals lawyer about the process and ensure that they have a clear understanding of what they can expect if they move forward.