Criminal Appeals in Washington

What is a criminal appeal?

Anyone convicted of a crime in state or federal court has a right to ask a higher court to reverse the conviction and/or reduce the sentence. The defendant (now called the “appellant”) must show that some legal error occurred in the lower court. The prosecutor cannot appeal an acquittal.

How does an appeal get started?

The defendant must file a notice of appeal, which is a short document explaining what is being appealed and which court should hear the appeal. In federal court, a notice of appeal must be filed within 10 days of the date the judgment is filed (which is usually on or close to the date of the sentencing hearing). The federal courts are quite rigid about this deadline. In state court, a notice of appeal should be filed within 30 days of the date the judgment is filed, but the courts can excuse a late filing under some circumstances. Typically, the attorney who handled the trial or plea will file the notice of appeal. The case may then be transferred to a different lawyer.

What are the next steps?

For the most part, a criminal appeal proceeds in the same way as a civil appeal.  One important difference is that a criminal appellant who cannot afford a lawyer has a right to appointed counsel, at least for the first level of appeal.

What sort of legal claims can be raised in an appeal?

There are many possibilities, including the improper exclusion of defense evidence, the improper admission of the prosecution evidence, and faulty jury instructions.  The claims must be based “on the record.”  That means that the appellant must rely on testimony, exhibits, and documents that were presented to the lower court.  If the defendant wishes to present new evidence, he must generally file a postconviction petition.

An appeal is not an opportunity to retry the case.  It is not useful to argue, for example, that the jury should not have believed the government’s witnesses.

Does the defendant have to serve his time while the case is on appeal?

It is sometimes possible to obtain an order permitting a defendant to stay out of custody while the appeal is pending.  This may require posting a bond.  Release pending appeal, however, is prohibited for certain crimes.