Appeals Attorney in Alexandria, Virginia
What are the biggest challenges you face in criminal appeals?
What are the biggest challenges you face in criminal appeals?
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in terms of winning a criminal appeal
I’d say there are two things that make
it so challenging and I’m not talking
about the work of it that’s very
difficult you have to be really detail
oriented you have to know the law you
have to know the record but in terms of
winning there’s two rules that make it
so hard one is the rule that most
rulings by a trial court are judged by
an abusive discretion standard what that
means is the court of appeals might
think the judge was wrong they might
think the judge was very wrong but they
can only find an error if the court
quote abused their discretion means it
has to be a ruling which was
tremendously wrong and so because of
that you can have very bad rulings that
make it through app pellet scrutiny on
top of that there’s a rule called the
harmless error rule which means that the
appeals court can say yes the trial
judge made a mistake maybe even many
mistakes maybe even a big one but if you
look at all the other evidence we think
it was sufficient anyway so even though
there was an error Congratulations by
the way for winning the case by finding
there’s an error but you don’t get a new
trial or acquit because there was other
evidence that could have convicted and
therefore it’s harmless error because of
those two things only certain kinds of
Errors really have a chance to get a
case r rsed it has to be either
something that’s so big in the case that
no one could ever say it was harmless
and there are things there are many
things like that for example a mistake
in jury selection cannot be harmless
because who knows what would have
happened if you had the right jury and
there are other things like that too
usually things with jury instructions
what the jury was told cannot be
harmless but you know so you have to
pick issues that are the right one that
have a chance to be effective you know
instead of losing even if you end up
winning the issue another challenge is
that trial lawyers are not very good at
what they call making a record so for
example let’s say there was an objection
in court the lawyer says objection to
this hearsay and you know you’re trying
to be the proponent of the
evidence in order and if you’re about to
lose that objection and not get that
evidence because it’s so-called hearsay
you need to tell the court what it was
going to be and why you needed it or
else you can’t win the appeal even if
the ruling is wrong and it’s called
making a profer or making the record
most lawyers don’t do it they just move
on to the next question what you need to
do is approach the bench or even if the
judge doesn’t want you to do that right
there and say this is what I was
offering and the reason it is important
is because of this and Link it straight
to the case and when you read a record
for a trial lawyer that doesn’t do that
you already know you can’t win that
issue right away and so another thing is
that people don’t understand until
they’ve done a lot of appeals that you
have to object to anything you can
that’s reasonable and generally not let
things slip by because you don’t want to
look annoying or because you feel like
you’re disrupting the flow or because
the judge is getting mad at you every
time you let that go by you just gave
away that issue it can never be ar again
I think especially in a big case you
know that’s a problem because lots of
lawyers who do an amazing job arguing
the case in front of the jury or
something they look at the record
there’s nothing in it because they
didn’t object to anything it looks bad
or whatever they felt or they didn’t
know how to do it and so that that’s
another big problem with Appeals
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Alexandria, VA criminal defense attorney Chris Leibig talks about the biggest challenges faced in criminal appeals.
