Judicial Review

Judicial review has three functions. First, it allows justice to be served by striking down erroneous decisions by lower courts. Second, appellate courts monitor the performance of lower courts; lower courts have an incentive to apply the law correctly if the possibility exists that their decisions may be overturned. Third, important controversies regarding the law are examined and resolved for the future guidance of courts and individuals. This third function is the primary concern of the highest courts, which in most cases agree to hear appeals only at their discretion.

There is no right to appeal guaranteed by the U.S. Constitution. The right to appeal is created by state constitution or by federal or state statute. How a case may be brought through a state court system on appeal depends on both the court system structure and statute. In most instances, after a case is first tried there is a right of appeal to the next higher court. Typically, after one appeal further appeal is allowed only at the discretion of the higher court. Defendants in certain types of cases may have the right of automatic appeal to the state supreme court, however. For example, in some states defendants in death penalty cases have the right of appeal from the trial court directly to the state supreme court.

Appeals are not new trials. No jury is assembled; instead a panel of several judges, usually at least three, review the case for error. The facts of the case as found by the jury (or the judge in a non-jury trial) are accepted by the appellate court, and the appellant may not introduce new facts that could have been presented at the trial. This is because the credibility of witnesses and other matters of fact are best determined by the jury at the time of the controversy; the appellate court has only a cold record and is not able to directly examine the demeanor of witnesses.

What the appellate court does examine is the application of law and rules of procedure to determine their validity. Depending on the contentions of the appeal, they typically examine the proper application of the rules of evidence as to the admission of evidence by both parties; the proper instruction of the jury as to the questions of law involved; whether the evidence supports the verdict; and whether applicable rules or guidelines for sentencing were followed. In most cases only the contentions or error made in the appeal are considered, and the claim must have been raised at the time of trial. Only the most extreme cases of plain error are considered if issues are not made part of the trial record when they occur.

If error is found, it must be substantial enough to have significantly affected the outcome of the trial. Harmless error in procedural details or other error that would make no difference to the outcome is insufficient to alter the judgment of the lower court.