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Standard of Review for Virginia Appeals

Standard of review is the lens through which the Virginia appellate court considers each question of law. It is the amount of deference that the appellate court gives to the rulings of either the trial court or the lower appellate court. What deference that is given depends a lot on what the issue is that is being appealed.

Someone who is interested in filing an appeal to a decision on their criminal case, should contact a Virginia appeals lawyer who is familiar with the appeals process. An attorney with specific experience handling appeals will know more details about an appeal than a trial attorney.

Question of Fact in Virginia

A question of fact is a question that does not relate to the legal structure in place. For example, if two witnesses testify and one says that they saw the red car drive through the stoplight and hit the blue car. The other testifies that they saw the blue car drive through the stoplight and hit the red car.

If a jury or a judge sitting in that case finds that the blue car drove through the stoplight and hit the red car, that’s a determination of fact. Regardless of whether that determination is true or not, the Virginia appellate court is going to give great deference to any finding of fact that was made in the trial court.

If that determination was made by a jury, then it will only be displaced if there is clearly not sufficient evidence to support that finding. If it was made by a judge, it will only be displaced if there’s clear error demonstrated on the judge’s part. An example could be if a medical professional provides uncontroverted testimony in court that someone could not have been involved in an offense because they had two broken legs at the time of the event.

If the defendant is convicted solely on the testimony of somebody who said they saw him running away, then an appellate court may look at that and find that there was clear error in fact finding. A factual error has to be almost that egregious for an appellate court to displace a fact determination by the trial court.

Question of Law in Virginia

A question of law is a determination that is made based on the laws in play. When a trial court is making a determination based solely on the law, the appellate court in Virginia will review that de novo and won’t give deference to the trial court’s determination of the law. This comes up often in appeals related to jury instruction where maybe the prosecution or the plaintiff would argue that the law in play is X and the defendant would argue that the law in play was Y.

If the judge says that the jury instruction will be X, then that judge’s determination is not entitled to deference. The appellate court will make the determination as if it is being presented for the first time regardless of what the trial court rules.

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