If you need to appeal the outcome of your federal criminal case, you have lots of factors to consider. While there are a variety of grounds for pursuing appeals, not all grounds are available in all cases; and, even if you have multiple grounds to challenge your (or your company’s) criminal conviction or sentence, asserting all of these grounds on appeal won’t necessarily be your best option in federal court.

This underscores the fact that the federal appeals process is a strategic one. While federal trials and federal appeals are very different, this is one thing they have in common. If you don’t pursue federal criminal appeals strategically, you will greatly diminish your chances of success in the court of appeals.

“Like all high-stakes federal criminal matters, federal criminal appeals require a highly strategic approach. Without sound legal arguments and a clear roadmap to success, appellants and their federal appeals attorney simply won’t be able to convince a panel of United States Circuit Court of Appeals judges to rule in their favor.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

But, while federal trials and appeals both require a strategic approach, the strategies used at the appellate level are entirely unlike those used at trial court. Effective federal appellate representation requires an in-depth understanding of all relevant substantive and procedural issues, and it requires insights that can only be gained from extensive practical experience.

How Can Appellants (and Their Counsel) Improve Their Chances of Success in Federal Criminal Appeals?

So, how can appellants (and their federal appeals lawyers) improve their chances of success in federal criminal appeals? Here are 10 strategies that will prove effective in many cases:

1. Devoting Adequate Time to Reviewing the Trial Record

Oftentimes, appellants and their federal criminal appeal lawyers will focus on hitting the ground running. They will prioritize crafting their briefs and formulating their oral arguments. They will move forward based on what they know about the issues that arose during trial, thinking that they have given due consideration to the breadth of the issues at hand.

Too often, however, appellants and their federal appeal lawyers do so without devoting adequate time to reviewing the trial record.

While reviewing the trial record is a time-intensive process, and while time can be a premium in the early stages of a federal criminal appeal, it is a process that requires due consideration. Generally, appellants and their federal appeals lawyers only get one opportunity to raise issues on appeal. If they overlook issues because they have not reviewed the trial record in full, they could unknowingly leave their strongest arguments on the table.

2. Focusing on Voir Dire

Issues arising during jury selection can often provide strong grounds for criminal appeals. These include issues such as allowing unconstitutional peremptory strikes and refusing to excuse biased jurors. Problems with voir dire can taint the entire trial process; and, whether argued alone or in conjunction with other errors, they can paint a picture of a trial process that was incapable of producing a just outcome.

3. Focusing on the Admissibility of the Government’s Evidence

Improperly allowing the government to introduce inadmissible evidence is another common ground for pursuing reversal or remand on appeal. When focusing on the government’s evidence at the appellate stage, the key is being able to establish not only that the trial court admitted evidence improperly, but also that the improperly admitted evidence had an impact on the trial’s outcome.

If the government introduced hundreds (or thousands) of pieces of evidence and there are questions about just one or two documents’ admissibility, it may be difficult to convince the federal appellate courts that these documents materially impacted the jury’s deliberations. On the other hand, if the trial judge improperly admitted an entire tranche of documents into evidence, or if the prosecution’s key witness should not have been allowed to take the stand, then this could serve as a strong foundation for a federal criminal appeal.

4. Focusing on the Admissibility of the Defense’s Evidence

In addition to focusing on the admissibility of the government’s evidence, focusing on the admissibility of the defense’s evidence can be an effective appellate strategy as well. If it is possible to show that the trial judge improperly excluded defense evidence, then it may be possible to show that the defendant was denied the constitutional right to a fair trial. This is especially (though not exclusively) true if the judge’s decisions regarding the admissibility of evidence seemed to favor the U.S. Attorney’s Office. But, materiality is an important consideration here as well, and focusing on evidence-related errors that likely did not influence the jury’s decision is not likely to be an effective appellate strategy.

5. Focusing on Other Erroneous Rulings During Trial

Along with focusing on improper rulings regarding admissibility, another effective federal appellate strategy in federal criminal cases can be to focus on other erroneous rulings during trial. Provided that trial counsel preserved these issues for appeal, showing that the trial judge improperly ruled on objections, jury instructions or other matters can give the appellate court sufficient reason to afford relief to an unjustly convicted or sentenced appellant. In some cases, it may be possible to map out how a specific erroneous ruling led to an unjust result. In others, it may be necessary to focus on demonstrating that the collective impact of multiple erroneous rulings allows only one reasonable conclusion—that the appellant did not receive the fair and unbiased trial to which he, she, or it was constitutionally entitled.

6. Identifying “Plain Errors”

While the Federal Rules of Appellate Procedure (FRAP) require that trial counsel preserve most issues for appeal, this requirement does not apply to “plain errors” committed during the trial proceedings. As FRAP 52 makes clear, "a plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”

The United States Supreme Court has established a four-part test for evaluating federal criminal appeals based on “plain error.” To effectively file an appeal based on an error not preserved at trial, an appellant (or the appellant’s federal appeals attorneys) must be able to clearly demonstrate that:

• The error represents a “deviation from a legal rule,” and the appellant has not waived the right to enforce the rule;
• The error is so “plain,” “clear,” or “obvious” that it cannot be reasonably questioned whether the error occurred;
• The error must have had a prejudicial effect on the outcome of the trial proceedings; and,
• The error seriously affected the fairness or integrity of the appellant’s trial, or it seriously affects the public reputation of the judiciary.

7. Taking the “Kitchen Sink” Approach

As we referenced in the introduction, focusing on certain specific errors when filing a federal criminal appeal can help with highlighting the severity and prejudicial impact of the issues raised—and this can be a highly effective strategy in many cases. But, in some circumstances, taking the “kitchen sink” approach can be an effective strategy as well.

If the lower court made numerous errors throughout the appellant’s trial proceedings, exhibiting the manifest injustice the appellant experienced could convince the appellate judges in the higher court that throwing out the lower court’s verdict is the only just result. When taking this approach, however, it is still extremely important to craft written and oral arguments that are as organized, concise, and clear as possible.

8. Challenging the Defendant’s Sentence

In some cases, the best approach will be to focus on challenging the appellant’s sentence rather than challenging the appellant’s conviction. If, based on a comprehensive review of the trial record, securing relief from the appellant’s federal conviction seems unlikely, then the most strategic approach may be to focus on overturning the appellant’s sentence and sending the case back to sentencing or re-opening the possibility of plea deal negotiations.

9. Prioritizing the Appellant’s Brief

Less than 20 percent of federal criminal appeals get scheduled for hearings. With this in mind, a key strategy in all cases is to prioritize the appellant’s brief. Effective appellate representation requires federal appeal lawyers with skilled written advocacy, and appellants’ briefs must be thoroughly researched, carefully organized, well drafted, and thoroughly proofread and reviewed. If an appellant’s brief does not receive the attention it deserves, this will show, and the appellate judges assigned to the case will not have the opportunity to give the appellant’s arguments the consideration they deserve.

10. Leaving as Few Questions Unanswered as Possible

Finally, a common strategy when preparing for oral arguments in a federal criminal case is to anticipate questions the judges will ask from the bench. But, while this is absolutely a worthwhile endeavor, it also raises an important question of its own: Why not tell the judges what they want to know proactively?

Generally, when pursuing a federal criminal appeal, the best approach is to leave as few questions unanswered as possible. By creating a clear roadmap to the desired outcome, appellants and their federal appeal lawyers can maximize their chances of success. Plus, if you leave important issues to be addressed through the judges’ questioning, this presents the risk that they won’t ask the questions you are anticipating.