The Law Offices of John Phebus

Successful criminal appeals depend upon what happens at trial

The end of a criminal trial may not mean the end of defendant's fight to establish his or her innocence. Appealing a trial conviction or appealing a guilty plea to an appeals court in Arizona offers the chance to have the higher court review errors that might have been made at the trial or during the lower court proceedings. An appeal is not, however, a new trial or the place to call witnesses and present new evidence.

Criminal appeals are quite different than the lower court proceedings that began following the arrest and concluded with the conviction or with a post-conviction hearing. The most striking difference that people notice about appellate court proceedings is the reliance upon written briefs prepared by the attorneys representing the defendant and the prosecution. The briefs contain the post-conviction argument of each side along with cases and statutes to support it. Appellate courts will frequently hear oral argument from the attorneys, but the oral presentations are limited to the contents of the previously submitted briefs.

Success or failure when appealing a trial conviction or a plea bargain depends upon what happened in the lower court. Appeals courts can only review the record that is submitted to them. The record includes the transcript of the lower court proceedings and the documents or other items offered into evidence. They cannot consider new evidence or additional testimony from witnesses in making a decision on the merits of the appeal.

Because of the limitations on what appellate judges may review in criminal appeals, it is important for a trial attorney to object on the record to the introduction of evidence that is damaging to the accused. Failing to do so could prevent it from being raised as an issue during a post-conviction argument in the appeals court.

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