Appeal

Like the federal government, nearly forty states have two-tier appellate systems. Although the precise jurisdictional arrangements vary, the most typical pattern provides for one appeal as of right to an intermediate appellate court and for further review in the state's highest court primarily on a discretionary basis—though review as of right in the highest court (often directly from the trial level, thus bypassing the intermediate appellate court) is typically afforded from imposition of a death sentence. In two-tier systems, the state's highest court ordinarily concentrates on unifying and elaborating the law, and the intermediate appellate court, though also important in elaborating legal principles, focuses on error correction (Shapiro, p. 632). In the remaining states, appeals are heard directly by the state's highest court. The overwhelming majority of appellate courts hear civil and criminal appeals alike—a scheme thought preferable because a specialized criminal court "is unlikely to attract the continuing attention, interest, and concern of the entire bar" (American Bar Association, "Commentary on Standard," chap. 21, 1.2).

Appellate courts typically decide in multijudge panels, thus permitting several judges to review matters decided by a single trial judge. Traditionally, appeals have been decided after oral argument by published written opinion, but docket pressures have led many jurisdictions, in cases deemed routine, to abbreviate or eliminate oral argument and to affirm convictions by order or by unpublished opinions—practices that have generated considerable controversy (Stern § 2.2).