An appeal is not a trial and is not like a trial. An appellant cannot, for example, introduce 
new evidence. An appeal is a proceeding to determine whether the trial was fair and/or whether the evidence was legally sufficient. The most common grounds for reversing a criminal conviction include erroneous jury instructions, improper admission or exclusion of evidence, improper argument by the prosecutor, and erroneous rulings on pretrial motions (i.e., motions to suppress, dismiss, etc.). Although ineffective assistance of counsel is perhaps the most commonly raised issue before the appellate courts, such claims rarely succeed.
The purpose of an appeal is typically to ask for a new trial, and sometimes, to ask for dismissal of the indictment or complaint. It generally consists of the following steps:
1. In an appeal from a conviction in the Superior Court, the court reporter produces a transcript of the trial. In an appeal from a conviction in the District Court, the defendant orders cassette tapes of the proceedings. The cassettes are then transcribed;
2. After receiving the transcript, the Superior Court or District Court Clerk's office sends the transcript and the other relevant papers to the appellate court. Appeals in first degree murder cases go directly to the Supreme Judicial Court. All other criminal cases go to the Appeals Court;
3. The appellate court enters the case on the docket (usually within a day or two of receiving the papers from the trial court);
4. Once the case has been placed on the docket, the defendant has forty days to file a brief in the appellate court. If, counsel for the defendant needs more than forty days to prepare a brief, the appellate court may grant an extension. The brief outlines the facts of the case, tells the court the procedural history of the case, identifies the claims of error, and sets forth authorities and arguments explaining why the conviction should be overturned. Although the rules allow the filing of briefs up to fifty pages in length, the courts encourage the parties to file briefs that are substantially shorter than the rules permit;
5. Once the defendant files his brief, the prosecution has thirty days to file its brief responding to the defendant's arguments. However, it is rare for the Commonwealth to file its brief within thirty days. Because of staffing shortages in the District Attorneys' offices, it typically takes three to four months for the prosecution to file their brief, and five or six months is not uncommon;
6. Once both briefs have been filed, the defendant has an opportunity to file a reply brief, but this step usually is not necessary unless the government makes an egregious misstatement of the facts or law;
7. Within a few months after the prosecution files its brief, the case is scheduled for oral argument before three justices if the case is in the Appeals Court or five to seven justices if the case is in the Supreme Judicial Court. Oral argument is limited to ten or fifteen minutes per side (or thirty minutes in a first degree murder case). In some cases, the Appeals Court may decide the case without oral argument if the issues are clear one way or another. Generally, the court decides the case from one to four months after oral argument. The court issues a written opinion explaining its reasoning for denying or granting the request for a new trial or for other relief. Some of those opinions are published, and some are not;
8. A party who loses in the Appeals Court has the option of applying to the Supreme Judicial Court for further appellate review. That party files an application (which is very similar to the original brief) explaining why the Appeals Court decided the case incorrectly. If three of the seven Supreme Judicial Court justices agree to hear the case, additional copies of the original brief are filed, and the case is argued before a five or seven judge panel of that court. Again, the decision usually takes from one to four months. If fewer than three justices wish to hear the case, the application is denied with no explanation from the court. Rulings on applications for further appellate review generally take from two weeks to a couple of months;
9. After a denial by the Supreme Judicial Court, the losing party may file a petition for certiorari to the United States Supreme Court or a Habeas Corpus petition in the United States District Court. However, these remedies are only available if the case presents questions of Federal law that have been preserved in the state courts.
Please note that most criminal appeals are decided in favor of the government. No one can guarantee a result, especially in a criminal case. Nevertheless, some appeals do succeed.
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Copyright 1993 by Dana Alan Curhan.
All rights reserved.