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Criminal Appeals in Virginia

An appeal in the criminal context is, in most ways, the same as an appeal in the civil context. An appeal is any review by a higher court of a judgment or a ruling of a lower court, usually the trial court, but sometimes a lower appellate court. In the vast majority of criminal cases and the majority of civil cases as well, what is being appealed is a final judgment or order that was made by the lower court.

If you believe you may have reason to appeal, consult with a Virginia appeals lawyer to learn more about the process of appealing and the impact it can have on your case.

What Can Be Appealed

In the criminal context, it might be an order of conviction or an order including or excluding evidence at some point in the proceeding. Sometimes there are also what are called “interlocutory appeals.” These are appeals that arise in the middle of a proceeding, wherein issues are of such importance that the parties need to resolve them before the matter can go forward. These arise most often in the civil context.

Difference Between Criminal and Civil Appeals

The biggest difference between an appeal of a criminal matter and an appeal of a civil matter is the relief for which the appealing party seeks.  A judgment of acquittal of a defendant cannot be appealed by the government. Regardless of whether a court or jury made a mistake or whether there was an error in a ruling, once the defendant is judged acquitted, he or she is off the hook. That is the end of the matter and that judgment cannot be appealed by the government. The government may appeal the ruling to clarify a point of law, but even if it wins that appeal, the defendant’s acquittal still stands.

Types of Appeals

There are several types of appeals. The most common one is a writ of error. That is when the party that is appealing, the “appellant,” claims that the trial court made a mistake in a ruling. The appellant goes to a higher appellate court to have that mistake reviewed and hopefully corrected. The appellate court will look at the issue based on what the ruling was and decide whether a mistake was made.

In Virginia, there are also what are known as “de novo” appeals. These are appeals of misdemeanor and traffic matters that were initially tried in the General District Courts. There are some Constitutional and other legal protections that the General District Court does not provide, so defendants who are convicted in that court have an absolute right to appeal to the Circuit Court. When the Circuit Court hears the appeal, the General District Court’s judgment is completely dissolved and the Circuit Court hears the case from scratch, or “de novo.”

Finally, there are “collateral appeals”. These are appeals that are not based on a mistake that was made by a court, but are based on some other happening that damaged the fairness or the constitutionality of a proceeding in a way that needs to be corrected. The most common example of this and the most well-known is what is called a Writ of Habeas Corpus.

For example, if a defendant was convicted, maybe the trial court didn’t make any mistake, but the defendant received ineffective assistance of counsel, or discovers there was misconduct by the prosecutor, or something that so fundamentally affected the fairness of the proceeding that the appellate court would have to step in and overturn the ruling. All appeals can result in a change, and hopefully a better result for an appellant than what resulted in trial.

Hiring An Appellate Attorney

The skills of a good appellate attorney are in some ways different from the skills of a good trial attorney. Appellate work is about judgment and evaluation of a case based on the likelihood of success. When a case is appealed, it is presented exclusively to panels of judges and they are only concerned, in most instances, about the legal issues involved.

A Virginia appellate attorney has to have a very good attention to detail parsing through the record of the trial and pretrial proceedings to determine whether what was objected to is actually an error and whether it harmed the party that is appealing. They also have to be able to condense that information, and those areas of the law that may not be entirely clear or settled, into a clear and concise argument for the judges on the appellate court.

They have to have very good writing skills, research skills, and oral argument skills to be able to present the complex issues in as clear a manner as possible to help their client proceed in front of the appellate judges. Someone who has experience dealing with appeals cases will understand the standard of review for judges in these cases and can thus inform clients on the process with more detail.

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