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Understanding the Criminal Appeal Process


If you are dissatisfied with a conviction or its sentencing in any of New Jersey’s courts, you have the right to file for an appeal to a higher court. It is important to remember, however, that an appeal is not a retrial where you will seek the positive outcome you failed to get the first time out. An appeal is a review of the lower court’s record based on the contention that legal errors or misapplication of the law occurred during your original trial. Those errors or misapplication played a major part in leading to your conviction or sentencing.

Understanding how the appeal process works is the first step in moving forward after a conviction. It is often necessary to start preparing for your appeal immediately following a guilty verdict, even before sentencing has occurred. That is because of strict rules for meeting the deadlines involved in your paperwork. Adhering to court schedules, rules, and time restrictions is vital. These will vary depending on which court will hear your appeal. Working with an appellate attorney who is well-versed in how the process works in all state and federal courts will give you the best chance for advancing your appeal and obtaining a favorable outcome.

The Basis for an Appeal

The criminal appeal process is one that is detail-oriented and complex.

It is based on legal error that must have been substantial enough to affect the outcome of your case in the lower court. These errors could include:

  • A plain error of law that was serious enough to influence the result
  • Not enough substantial evidence to merit the outcome
  • A judge abused his or her discretionary power in imposing a ruling or sentence
  • You had ineffective/poor legal representation

In an appeal, the higher court will review the transcripts of all that took place at your trial in the lower court. This will include everything stated by the attorneys, the judge, and any witnesses called to the stand. New evidence is generally not presented.

Beside the court record, the appellate court will also review the written briefs submitted by your attorney and the government’s opposing attorney. These briefs will argue each side’s version of the case. Your side will present the most compelling argument possible, pointing out the defects in the lower court’s record that led to the conviction or sentencing. Your opponent’s side will present arguments as to why the conviction or sentencing should be upheld. Your side may file a second written brief as a response after the government’s attorney has stated his or her case. Additionally, oral arguments may also be presented by both sides to the appellate court.

Possible Outcomes of an Appeal

After reviewing all the above, the appellate court panel will discuss the case and make their decision. This decision could include upholding the original conviction found or sentencing imposed by the lower court, reversing the lower court’s decision, which could result in a new trial, or “remanding” the case back to the lower court for a retrial or a new sentencing.

The criminal appeals process is a lengthy one. How long it will take will depend on which type of court is involved, such as state or federal, and how backlogged that court may be. While it can take many months for an appeal to proceed through the appellate courts, your filing for an appeal must often take place within a very limited timeframe following a conviction.

Want to learn more? Uncertain whether you should appeal? Contact he Law Offices of Joseph R. Donahue, LLC for a consultation through our online request form or at (201) 574-7919.

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