Appeal

Nature of the right. In McKane v. Durston, 153 U.S. 684, 687–88 (1894), the Supreme Court stated that a defendant has no federal constitutional right to an appeal. But in neither McKane nor in subsequent decisions that have reiterated that statement (e.g., Ross v. Moffitt, 417 U.S. 600, 606 (1974), and Griffin v. Illinois, 351 U.S. 12, 18 (1956)) did a state fail to provide any appellate review of criminal convictions. Doubts that the McKane dictum remains sound (e.g., Arkin; Meltzer) are unlikely to be resolved, for every state now provides some method of appeal from criminal convictions in serious criminal cases. (In Virginia, West Virginia, and New Hampshire, formally no appeal as of right exists, but the procedures that each state's highest court follows in determining whether to grant discretionary review ensure substantive consideration of the appellant's contentions; Arkin, pp. 513–514.)

Except for common provisions requiring review when a death sentence is imposed, appeals in criminal cases are elective. Most jurisdictions require the trial court at sentencing to notify the defendant of the right to appeal (e.g., Rule 32(c)(5) of the Federal Rules of Criminal Procedure).

Equal protection and due process. Whether or not the U.S. Constitution confers a right to appeal, once state law confers such a right, a state may not, consistent with the Fourteenth Amendment, deny indigent defendants the right to meaningful appellate review. The Supreme Court first applied that principle in Griffin, holding that indigent defendants are entitled to a free trial transcript so that they would have "as adequate appellate review as defendants who have money enough to buy transcripts" (p. 19). The Court has read Griffin as "a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way"—Mayer v. Chicago, 404 U.S. 189, 196–197 (1971)—and thus has invalidated a rule conditioning the right to appeal on payment of a filing fee (Burns v. Ohio, 360 U.S. 252, 258 (1959)).

The Griffin principle was extended in Douglas v. California, 372 U.S. 353, 357–58 (1963), where the Supreme Court ruled that on a defendant's first appeal, granted as a matter of right, an indigent defendant is entitled to counsel to brief and argue the appeal. The right recognized in Douglas comprehends assistance of counsel that satisfies constitutional standards of effectiveness (Evitts v. Lucey, 469 U.S. 387 (1985)). But in Ross v. Moffitt, the Court declined to extend Douglas to require counsel for indigents who seek discretionary review before the state's highest court. Focusing less on equal treatment of rich and poor appellants and more on ensuring adequate access to appellate review, the Court reasoned that a "meaningful appeal" at the second tier was possible without counsel, for a lawyer would already have briefed and argued the first appeal, ensuring that the "defendant's claims of error are organized and presented in a lawyer-like fashion" (pp. 612, 615).

Because indigent criminal appellants, unlike most civil appellants, typically have everything to gain and nothing to lose by seeking review, Douglas gave rise to the troublesome question of the appropriate role for a court-appointed counsel who believes an appeal utterly without merit. In Anders v. California, 386 U.S. 738, 744 (1967), the Court held that a lawyer who, after a "conscientious examination" of the case, finds an appeal to be "wholly frivolous" should so advise the court and request permission to withdraw. The opinion in Anders added, however, that because the court, not counsel, must decide whether the appeal is frivolous, the lawyer's request must include "a brief referring to anything in the record that might arguably support the appeal" (p. 744), a copy of which must be furnished to the defendant, who then may raise additional points with the court. Some have criticized Anders for diverting limited resources from meritorious cases, though others have noted that appellate reversals sometimes occur even after appointed counsel has filed an "Anders brief " explaining the hopelessness of the case (Hermann, p. 709), and some states have further limited counsel's latitude by prohibiting withdrawal altogether (Warner, pp. 643–651). More recently, however, in Smith v. Robbins, 120 S. Ct. 726 (2000), the Supreme Court relaxed the strictures governing counsel, ruling that the Anders procedures are not the only way to satisfy the Constitution. In Smith, the Court approved a state procedure under which counsel's filing on appeal did not identify any arguable issues, but merely (1) summarized the case history; (2) attested that counsel had reviewed the record, consulted with his client, and supplied the client with a copy of the brief; and (3) requested that the court examine the record for arguable issues.

The final-order requirement. In general, appeal may be taken only from a final judgment, which typically means after conviction and imposition of sentence. The final judgment rule, though not unique to criminal cases, has been followed there with particular stringency because "the delays and disruptions attendant upon intermediate appeal," which the rule is designed to avoid, "are especially inimical to the effective and fair administration of the criminal law" (DiBella v. United States, 369 U.S. 121, 126 (1962)).

Most jurisdictions do, however, permit appeal from some set of orders not strictly final. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), a civil case, the Supreme Court concluded that a pretrial ruling should be deemed "final" for purposes of appeal in the federal system if (1) the lower court has fully decided the question; (2) the decision was not merely a step toward final disposition of the merits of the case but instead resolved a collateral issue; and (3) the decision involved an important right that would be lost, probably irreparably, if review had to await final judgment.

The Supreme Court has found the collateral order rubric of Cohen applicable in only three criminal cases. In Stack v. Boyle, 342 U.S. 1, 4 (1951), the Court ruled that a defendant may immediately appeal a pretrial order setting bail. (Whether under a variant of the collateral order doctrine or specific statutory authorization—as federal law now provides, see 18 U.S.C. § 3145—both defense and prosecution are typically authorized to appeal bail decisions.) Under the Cohen rationale, appeal has also been permitted from a trial court's denial of a motion to dismiss an indictment when the defendant claimed to be immune from prosecution under the double jeopardy clause (Abney v. United States, 431 U.S. 651, 662 (1977)) or the speech or debate clause (Helstoski v. Meanor, 442 U.S. 500, 508 (1979)); in both cases, the Supreme Court reasoned that the right at issue would be undermined by the mere occurrence of the trial. But the Court has not applied the Cohen doctrine expansively, refusing to permit an immediate appeal from a pretrial order that disqualified the defendant's counsel (Flanagan v. United States, 465 U.S. 259, 270 (1984)) or that denied a defense motion presenting the claim that the prosecution was vindictive (United States v. Hollywood Motor Car Co., 458 U.S. 263, 270 (1982)) or that the defendant had been denied a speedy trial (United States v. MacDonald, 435 U.S. 850, 853 (1978)).

Many states follow Cohen's collateral order doctrine or some similar approach that permits immediate appeal of some orders not strictly final. While a few states authorize interlocutory review more broadly—for example, where "appeal would be in the interest of justice" (Utah Code Crim. Proc. § 77–18a–1)—typically judicial authorization is required and is sparingly provided.

Bail pending appeal. Following conviction a defendant no longer enjoys the presumption of innocence, and thus the criteria governing release pending appeal are generally stricter than those applied pending trial. Some jurisdictions deny bail pending appeal for a category of more serious offenses; others make bail pending appeal, unlike bail pending trial, a matter of discretion rather than of right; still others make bail available only when the defendant demonstrates that the appeal raises a substantial question.

Appeals by the prosecution. Prosecution appeals typically require specific statutory authorization, and virtually every jurisdiction authorizes appeals from at least some orders. Some jurisdictions, including the United States, essentially permit government appeals from all decisions dismissing charges, whether before or after trial, except when further prosecution would be barred by the double jeopardy clause (e.g.,18 U.S.C. § 3731)—a bar that applies after a jury verdict of not guilty or after any other judgment deemed to constitute an acquittal.

Many jurisdictions also authorize interlocutory appeals by the prosecution from specified orders—most commonly, pretrial decisions to suppress evidence (e.g., 18 U.S.C. § 3731)—in part because if an erroneous decision to suppress leads to an acquittal, double jeopardy principles will preclude a government appeal. Because of the obvious concern about delay and disruption, interlocutory appeals are rarely permitted once trial has commenced.