Part 1
Identifying Appealable Issues

  1. 1
    Distinguish between legal and factual issues. An appeal isn't a new trial. Generally speaking, you can only appeal situations in which the judge at your trial made a mistake in the law, or in the application of the law to your case.[3][4]
    • It can help to think of factual issues as the issues the jury decides. Legal issues, in contrast, are decisions made by the judge.
    • For example, suppose the prosecutor asked a witness a question and your attorney objected. The judge made a legal decision when he or she decided whether to sustain or overrule your attorney's objection.
    • If the judge overruled your attorney's objection and allowed the question, that potentially created an appealable legal issue. You can argue on appeal that the judge should not have allowed that question and made a legal error.
    • Additionally, the error generally must be one that would have made a difference in the outcome of your trial. This you establish through legal argument.
  2. 2
    Have another attorney review your case. In some situations, you can get the same attorney who represented you at trial to work on your appeal. However, typically it's better to at least get someone else to look at your case and help identify issues for appeal.[5][6]
    • Getting another attorney to look at the case is especially important if you have problems with the way your attorney represented you at trial.
    • While you can appeal a conviction based on the fact that you did not have meaningful representation, this is a very difficult argument to make – and one that seldom results in the reversal of a conviction.
    • However, even if you were satisfied with your attorney's representation, it can be helpful to have fresh eyes on the case. Your attorney was so involved in the trial they may miss an issue that would be obvious to another attorney looking at the cold record from the outside.
  3. 3
    Evaluate sentencing issues. Many appeals challenge the sentence given rather than the conviction itself. You have more flexibility in appealing the sentence because you can appeal both legal and factual errors.[7]
    • Appealing a factual error involved in sentencing is a pretty narrow argument. Essentially, you're telling the appeals court that the trial court judge misinterpreted the significance of a fact.
    • You also can argue that the judge did not correctly apply mitigating factors that should have led to a lesser sentence for you.
    • You often find these issues by comparing your sentence to the sentence given to similar defendants. Similarity applies both to the other defendant's criminal history as well as the type of crime and the gravity of the offense.
    • For example, suppose you were convicted of a non-violent drug charge and it was your first offense. However, your sentence was twice that of other first-time offenders convicted of the same charge. You may have grounds to appeal your sentencing.
  4. 4
    Look for evidence of prejudice or bias. Issues of prejudice can come up both in conviction appeals and sentencing appeals. Particularly in regard to sentencing, you also may be able to argue that the judge abused his or her discretion.[8]
    • Prejudice and bias relate to your constitutional rights to due process, and generally are incredibly difficult to prove.
    • The difficulty comes from the fact that judges and juries seldom are explicit in their bias. For example, you would rarely hear a judge say "I normally sentence defendants in your situation to one year in prison, but I'm giving you five years because you're black."
    • Instead, you have to look at sentencing patterns over the years from that particular judge, as well as other judges in the same court or geographic area.
    • These patterns may show that judges tend to treat defendants of, for example, a particular race differently than other defendants.
  5. 5
    Understand the cost of a possible appeal. You typically must pay a filing fee of several hundred dollars to file an appeal, and you also may have to pay your attorney – even if you're using a public defender.[9][10]
    • If you can't afford the costs of an appeal, you may be able to apply with the court and be declared indigent. Typically you must show that you have income and assets that fall below a certain threshold.
    • If you are in prison, you typically qualify based on your own income and assets (or lack thereof).
    • However, keep in mind that the court may consider income and assets of other family members that are potentially available to you.
    • An appellate attorney, or the attorney who represented you at trial, usually will be able to give you a reliable estimate of how much it will cost to appeal your conviction or sentence.
    • You also should take into account the attorney's assessment of the strength of your case. If you seem likely to win your appeal, it may be worth the cost.
    • However, if your chances of winning are slim, you may want to reconsider appealing if you're worried about your ability to afford it.

Part 2
Initiating the Appeals Process

  1. 1
    File your notice of appeal. The first step in the appeals process is filing a notice of appeal with the appellate court that will hear your case. This notice lets everyone know that you plan to appeal your conviction or sentence.[11][12]
    • You have a very limited time after your conviction – typically fewer than 30 days – to file your notice of appeal.
    • However, the notice usually is a standard form available from the clerk's office that you can fill out and file on your own.
    • Although you should hire an attorney to represent you on appeal, it's not necessary to settle on who you want to represent you before you file the notice.
    • Keep in mind you typically must pay the filing fees for your appeal when you file your notice of appeal. Expect these fees to be several hundred dollars.
    • Appeal filing fees may be waived if you have extremely limited income and assets and are able to qualify as indigent. Ask the court clerk for a fee waiver application.
  2. 2
    Request the trial transcript. When you appeal, the record of your trial must be sent up from the trial court to the appellate court. In some courts, this record is automatically generated when you file your notice.[13][14]
    • In others, you must complete a form requesting that the court clerk generate the written transcript of your trial.
    • There may be additional fees associated with producing copies of the trial record, or this cost may be included with the fees for filing an appeal. If you qualify as indigent, you typically don't have to pay fees for copies of the record.
    • After the record is complete, a copy also must be sent to the attorney representing the government on appeal. Your attorney will work with the attorney representing the government to decide which portions of the transcript should be sent up to the appellate court for review.
  3. 3
    Gather information about your case. After the notice of appeal is filed, you and your attorney have a limited period of time to assemble your appellate brief. This requires your attorney to spend extended time reading the trial transcript and conducting legal research.
    • Your attorney will review the entire trial record, including all evidence introduced in your case.
    • Based on their findings, your attorney may have questions for you regarding your trial or the events that led to your arrest.
    • Be completely open and honest with your attorney so they can accurately assess the issues raised by your case.
  4. 4
    Draft your appellate brief. Despite the name, appellate briefs are seldom short, and typically involve 20-30 pages of extensive legal analysis and argument of your case. While your attorney may discuss the brief with you, this portion of the process will for the most part be out of your hands.[15]
    • If you don't have an attorney and want to represent yourself on appeal, you do have the right to do so – although you should make every effort to obtain representation from a qualified and experienced appellate lawyer.
    • Particularly if this is your first appeal immediately following your trial, there may be forms available that can help you draft your appellate brief.
    • The jail or prison where you're serving your sentence may have a law library that you can use to research your appeal issues. There also may be volunteer attorneys available to assist you.
    • Otherwise, drafting the appellate brief will largely be your attorney's responsibility. However, you should expect them to go over the issues they plan to argue and explain your appeal so that you can understand it.
    • If you have any questions or issues you think your attorney should consider, reach out to them to discuss your concerns.
  5. 5
    File your appellate brief. Within a month or so of the date when you filed your notice of appeal, you must file your appellate brief with the appeals court that will be hearing your appeal. Your attorney typically will take care of the actual act of filing the brief.[16]
    • Your appellate brief also must be served on the attorney representing the government on appeal. On appeal, the roles are essentially reversed. Since you filed the appeal, you are known as the "appellant" and are listed first.
    • The government becomes the appellee. It is the government attorney's job on appeal to tell the appeals court why your conviction or sentence should stand as it is.
    • The government attorney will file a brief in response to your brief, outlining the government's arguments. Your attorney will go over these arguments with you and discuss the next step in the appeals process.
    • Ultimately, the appeals court will hold oral arguments to make a decision on your appeal. Oral arguments aren't like a criminal trial – you only have attorneys for either side arguing before a panel of judges. There's no jury, and no witnesses are called or physical evidence introduced.

Part 3
Getting Released on Bail

  1. 1
    Review the law in your state. The federal rules permit offenders to be released on bond pending their appeal. However, state laws vary widely. If you were convicted in a state court, make sure your state allows post-conviction release pending appeal.[17]
    • Many states don't allow release pending appeal at all. Of those that do, states often limit this ability to those convicted of relatively minor crimes, where they potentially would serve their entire sentence before the appeal was even heard.
    • If you were convicted of a violent felony, your chances of being released on bond pending your appeal are slim to none.
    • However, if you're eligible, the factors considered by the court are similar to those the court considers when deciding whether to release you on bail before trial.
    • If you were released on a relatively low amount of bail prior to your trial, there may be a better chance you'll be released on bail pending your appeal.
  2. 2
    Consult an attorney. Even where release pending appeal is allowed, judges have significant discretion regarding whether to permit release. On top of that, the judge who presided over your trial is the one who will determine whether you can be released pending appeal.[18][19]
    • In federal court, your conviction is presumed to be correct. If you were rightfully convicted, then you aren't entitled to release from prison.
    • This is a difficult presumption to overcome, especially when you consider that the same judge who sentenced you will also make the decision whether to release you on bail.
    • You also must demonstrate that you aren't a flight risk or a danger to your community, and that your appeal is likely to result in reversal of your conviction.
    • Given this extremely high burden, having an attorney to represent you is crucial if you want to stand any chance of being released pending your appeal.
  3. 3
    Draft a motion for release. If you and your attorney believe you have a strong argument for your release pending your appeal, request release through a court motion. A motion asks ("moves") the court to grant your request.[20]
    • Your attorney will draft the motion as well as an accompanying memorandum that describes your situation and the facts of your case.
    • The memorandum also outlines the legal argument for your release. Typically this includes a summary of the issues raised by your appeal.
    • Don't expect a motion for release to be filed immediately after your conviction. At best, it typically will be a month or two before your attorney has sufficient information to draft the motion and accompanying memorandum.
  4. 4
    File your motion for release. Once the motion is drafted, it must be filed with the clerk of the court where you were originally tried. Typically you must pay a filing fee, at which point your motion will be set on the court's schedule.[21]
    • The motion will be served on the prosecuting attorney, who has the opportunity to submit a written response arguing against your release.
    • The prosecuting attorney's written response will be served on your attorney. They typically will meet with you to go over the prosecuting attorney's arguments.
    • Your attorney also may give you an estimate of the likelihood that your motion will be granted.
  5. 5
    Attend the hearing on your motion. The judge typically will hold a hearing to determine whether you should be released on bail pending your appeal. The prosecuting attorney also may be there to argue against your release.[22]
    • In some cases, the judge may decide not to have a hearing at all, and simply make a decision based on the written materials submitted by your attorney and the prosecuting attorney.
    • If the judge does hold a hearing, you typically should expect to attend. Your attorney may want you to take the stand and testify regarding your request to be released pending appeal.
    • After hearing from both sides, the judge makes a decision whether to release you. If the judge decides you are entitled to release, they'll set bail. Just as before your trial, you will only be released provided you can get someone to make bail for you.
    • Also keep in mind that if the judge orders your release, the prosecuting attorney has the ability to appeal that decision. Based on the outcome of the appeal, you could end up back in prison pending your appeal.

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