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FAQ / Criminal Appeal

What is a criminal appeal?

Many defendants on trial in the criminal court system may lose their case and be severely punished, as the result of an error that negatively affected their case. In the event that a defendant in a criminal case is not satisfied with the verdict in his or her case, due to an error, the individual may ask the judge to overturn the decision. If the judge decides not to overturn the ruling the defendant may request an appeal in the Court of Appeals. An appeal is a request for a review in the decision of the previous criminal trial, which is up to the higher court to decide.

So what do I do if my sentence is unfair?

After being convicted and the sentence has been decided, the defendant has the option of filing a criminal appeal in Michiagn . If the conviction is the result of a guilty plea, the defendant can ask file a motion asking for ‘leave to Appeal’ or permission to make a criminal appeal. Sometimes, if the conviction was the result of a plea bargain, the defendant may have already waived their right to appeal.  If you get an experienced Michiagn criminal defense lawyer during your trial and criminal appeal process, they can make sure that you keep your right to appeal.

   If the conviction was the result of a guilty verdict at trial, then the defendant always has the right to appeal by right. Most people think that a criminal appeal is a new trial. But that is not the case. Instead, the appeals court will review what happened during the initial trial to make sure that everything was fair and just.

How will an attorney speak with an incarcerated client?

If the client is located within the Michigan Department of Corrections, we can schedule a private attorney-client conference within a few days of notice. 

How often does an attorney speak with the client?

We maintain regular communication with our clients, and we encourage our clients to notify us in writing of any issues that they believe are pertinent.  Naturally, should the client wish to speak with an attorney, he/she may notify our office either by writing or through a family member/friend, and we may schedule a telephone conference.

What can the Court of Appeal do with the decision appealed?

An appeal is not a rehearing of a case. An appeal is different from a trial. In an appeal, the person who lost in the lower court argues the judge made a mistake. For example, the judge in the lower court may have used the wrong law. You should identify the mistake you think the judge made. This is very important. The Justices of the Court of Appeal cannot change another judge’s decision just because they disagree with it. The lower court is entitled to hear the evidence and come to its own decision. The Court of Appeal can only change that decision if the lower court made a mistake as to the law or misunderstood important evidence.

Can every case be appealed?

You do not have an automatic right to appeal to the Court of Appeal in every case. It depends on the kind of case. As a general rule, the Court of Appeal will hear an appeal from any final decision of the Trial Court. Leave (i.e. permission from the Court of Appeal) is required to appeal interlocutory decisions. Interlocutory decisions are decisions that are made during the course of a trial. It may affect the manner of conducting the trial or an issue in the case, but does not decide the final outcome.


A Petition for Writ of Habeas Corpus challenges the legality of one’s custody and requests that a Writ of Habeas Corpus issue to remedy a constitutional violation and free that individual from his or her custodial status.  A defendant is “in custody” if he or she is in jail or prison or on probation or parole. If you are not in custody, you are not eligible for habeas relief.  However, there are other remedies you may seek and Ms. Klein will discuss these with you at the time of your consultation.

Unlike an appeal, which is strictly based on the trial court record, a Petition for Writ of Habeas Corpus is usually based on evidence that was not presented at trial.

What are the chances that my conviction will be reversed?

Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed "perfect" trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed "harmless," and consequently few convictions are reversed. However, some types of errors are so grievous that they are presumed harmful, such as the use of a coerced confession in violation of the 14th Amendment.

Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.

What are Post-Conviction Remedies?

Convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals, and writs. The following list illustrates these steps.

Motion for acquittal. Request that the judge decide that there is not enough evidence to convict the defendant.

Motion for a new trial. Request that trial judge declare a mistrial and grant a new trial.

Appeal to state appellate court. Contends that trial judge made some legal error.

Petition for rehearing to state appeals court. Requests that appeals court judges change their own decision.

State supreme court appeal. Requests that highest court in the state review and overturn the decision of the mid-level appeals court.
U.S. Supreme Court appeal. Requests that highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution.

State court habeas corpus petitions. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that the defendant is being held in violation of some state law or constitutional right.

Federal habeas corpus petition. Requests the federal trial court to order the jail or prison holding the defendant to release the defendant because the defendant is being held in violation of the U.S. Constitution.

Will the appellate court hear more testimony?

No. The appellate Court will render its decisions based solely on the evidence set forth in the appellate record, and the legal arguments presented by the parties in their briefs and oral arguments. No outside evidence can be considered. Even if someone were to confess to the offense before the Court of Appeals made their decision, the Court could not consider that as "evidence."

Can I win an appellate ruling that the charges against me must be dismissed?

Generally no. In the overwhelming majority of criminal appeals, the absolute best that you can achieve is to win a reversal of your conviction and a new trial. Usually the best possible result from a criminal appeal is to be put back in the position you were in before your trial started. So an appellate victory usually takes you "back to square one" and the prosecution gets another crack at obtaining a conviction at a second trial.

In rare cases it may be possible to win a reversal and a dismissal, but these circumstances are truly rare. For example, if you actually succeed in persuading an appellate court that as a matter of law there was insufficient evidence to support a conviction, then your conviction will be reversed and dismissed. But the standard for showing insufficient evidence as a matter of law is a very difficult one to meet, and this does not happen often.

In other unusual circumstances you may be entitled to a reversal and a dismissal, such as where you demonstrate a violation of the state court speedy trial rule, or where there has been particularly egregious governmental misconduct.

Why should I hire you to represent me on appeal?

The four most important talents that an appellate attorney should possess are: (a) comprehensive knowledge of the criminal law; (b) the ability to spot issues which the trial attorney has missed; (3) the ability to write a persuasive brief; and (4) the ability to speak persuasively in a very restricted amount of time.

He is an excellent writer.  A good writer (and a good speaker) spends a lot of energy on organization. Much of the law is an exercise in logic: if this, then that. A good writer organizes the appellate brief so that the appellate judges will see the logic of your argument on their own. Long before any conclusions have been articulated in the body of the brief, the appellate judges have been induced to form their own conclusion that reversible error was committed, and that the trial was not a fair one.

Finally, the ability to speak effectively in a very short period of time is generally simply a function of hard work and planning. In most appeals the appellate attorneys are given ten minutes in which to make their arguments. Those ten minutes must include both opening and rebuttal arguments. The key to making effective use of 10 minutes of oral argument is preparation.

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