Appellate Advocacy

The SIXTH AMENDMENT to the U.S. Constitution guarantees a criminal defendant the right to a jury trial and the right to an attorney. The FOURTEENTH AMENDMENT says states must provide criminal defendants with these same guarantees. The U.S. Supreme Court has repeatedly held that a person found guilty in a criminal proceeding has no constitutional right to appeal. A federal criminal defendant's right to appeal, therefore, is based on an act of Congress.

Prior to the nation's founding, many colonial legislatures allowed, by special act, new trials of criminal defendants. But generally, criminal appeals did not exist when the U.S. Constitution was drafted, and the JUDICIARY ACT OF 1789 (ch. 20, 1 Stat. 73) did not provide for appellate review of criminal cases. Thus, history does not support a constitutional right to criminal appeal. The issue was left to Congress.

Between 1855 and 1860, Congress refused to provide for federal criminal appellate jurisdiction, although several bills were introduced. Finally, in 1879, Congress authorized the federal circuit courts to issue writs of error in criminal cases on a discretionary basis. In 1889, Congress gave defendants sentenced to death the right of direct appeal to the U.S. Supreme Court. In 1891, it extended the Supreme Court's jurisdiction for review to all "cases of conviction of a capital or otherwise infamous crime" (26 Stat. 827, quoted in 775 S. Ct. 1332 [1957]). Because of the burden on the Supreme Court of hearing a large number of criminal appeals, in 1897, Congress transferred jurisdiction over noncapital appeals to the circuit courts of appeals. In 1911, Congress abolished the right of direct appeal to the Supreme Court in capital cases, and the circuit courts became the appellate courts for all criminal cases.

In 1894, in McKane v. Durston, 153 U.S. 684, 14 S. Ct. 913, 38 L. Ed. 867, a unanimous Supreme Court determined that no matter how serious the offense, a criminal defendant had no constitutional right to appeal her or his conviction.

The Criminal Justice Act (18 U.S.C.A. § 3006A [1995]) is an outgrowth of the Sixth Amendment RIGHT TO COUNSEL. The act requires courts to develop and implement plans to furnish representation for defendants charged with felonies or misdemeanors, other than petty offenses, who are financially unable to obtain an attorney. Although the act is directed primarily to proceedings at the trial court level, it provides that any person for whom counsel is appointed shall be represented at every stage of the criminal proceedings, from the defendant's initial appearance through the appeal process.