7.6. The Appeals Process, Standard of Review, and Appellate 
Decisions 
LORE RUTZ-BURRI 
The Appeals Process 
The government cannot appeal a jury’s decision by  acquitting the defendant, or finding the defendant 
not guilty. Thus, most criminal appeals involve defendants who have been found guilty at trial. The 
government may appeal a court’s pretrial ruling in a criminal matter before the case is tried, for example a 
decision to suppress evidence obtained in a police search. This is called an interlocutory appeal. Although 
the defendant is permitted to appeal after entering a guilty plea, the only basis for his or her appeal is to 
challenge the sentence given. When the defendant appeals, he or she is now referred to as the appellant, 
and the State is the appellee. (Note that often the court will use the words petitioner and respondent. 
The petitioner is the party who lost in the last court who is petitioning the next level court for review; the 
respondent is the party who won in the last court).  In routine appeals, the primary function of appellate 
courts is to review the record to discern if errors were made by the trial court before, during, or after the trial. 
No trial is perfect, so the goal is to ensure there was a fair, albeit imperfect, trial. Accordingly, the appellate 
courts review for fundamental, prejudicial or plain error. Appellate courts will reverse the conviction and 
possibly send the case back for a new trial when they find that trial errors affected the outcome of the case. A 
lower court’s judgment will not be reversed unless the appellant can show that some prejudice resulted from 
the error and that the outcome of the trial or sentence would have been different if there had been no 
error. By reviewing for error and then writing opinions that become case law, appellate courts perform dual 
functions in the criminal process: error correction and lawmaking. 
Appellate judges generally sit in panels of three judges. They read the appellant’s brief  (a written 
document filed by the appellant), the reply brief  (a written document filed by the the appellee), and any 
other written work submitted by the parties or friend of the court amicus curiae briefs. Amicus curiae are 
individuals or groups who have an interest in the case or some sort of expertise but are not parties to the case. 
The appellate panel will generally listen to very short oral arguments, generally twenty minutes or less, by 
the parties’ attorneys. During these oral arguments, it is common for the appellate judges to interrupt and ask 
the attorneys questions about their positions.  The judges will then consider the briefs and arguments and 
the panel will then meet and deliberate and decide based on majority rule. If the appellate court finds that no 
error was committed at trial, it will affirm the decision, but if it finds there was an error that deprived the 
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