In law, an appeal is a process for making a formal change to an official decision.
The specific procedures for appealing, including even whether there is a right of appeal from a particular type of decision, can vary greatly from country to country. Even within a jurisdiction, the nature of an appeal can vary greatly depending on the type of case.
An appellate court is a court that hears cases on appeal from another court. Depending on the particular legal rules that apply to each circumstance, a party to a court case who is unhappy with the result might be able to challenge that result in an appellate court on specific grounds. These grounds typically could include errors of law, fact, or procedure (in the United States, due process).
In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts.
Ability to appeal
Many jurisdictions recognize two types of appeals, particularly in the criminal context.[1][2][3]The first is the traditional "direct" appeal in which the appellant files an appeal with the next higher court of review. The second is the collateral appeal or post-conviction petition, in which the petitioner-appellant files the appeal in a court of first instance--usually the court that tried the case.
The key distinguishing factor between direct and collateral appeals is that the former only reviews evidence that was presented in the trial court, but the latter allows review of evidence dehors the record: depositions, affidavits, and witness statements that did not come in at trial. The standard for post-conviction relief is high, typically requiring the petitioner to demonstrate that the evidence presented was not available in the usual course of trial discovery.
Relief in post-conviction is rare and is most often found in capital or violent felony cases. The typical scenario involves an incarcerated defendant locating DNA evidence demonstrating the defendant's actual innocence.
Direct or Collateral
A notice of appeal is a form or document that in many cases is required to begin an appeal. The form is completed by the appellant or by the appellant's legal representative. The nature of this form can vary greatly from country to country and from court to court within a country.
The specific rules of the legal system will dictate exactly how the appeal is officially begun. For example, the appellant might have to file the notice of appeal with the appellate court, or with the court from which the appeal is taken, or both.
Some courts have samples of a notice of appeal on the court's own web site.
The deadline for beginning an appeal can often be very short: traditionally it is measured in days, not years. This can vary from country to country, as well as within a country, depending on the specific rules in force.
Notice of appealGenerally speaking the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue).
If the appellate court finds no defect, it "affirms" the judgment. If the appellate court does find a legal defect in the decision "below" (i.e., in the lower court), it may "modify" the ruling to correct the defect, or it may nullify ("reverse" or "vacate") the whole decision or any part of it. It may in addition send the case back ("remand" or "remit") to the lower court for further proceedings to remedy the defect.
In some cases an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review, for example, if the lower court resolved the case by granting a pre-trial motion to dismiss or motion for summary judgment which is usually based only upon written submissions to the trial court and not on any trial testimony.
Another situation is where appeal is by way of re-hearing. Certain jurisdictions permit certain appeals to cause the trial to be heard afresh in the appellate court. An example would be an appeal from a Magistrates' court to the Crown Court in England and Wales.
Sometimes the appellate court finds a defect in the procedure the parties used in filing the appeal and dismisses the appeal without considering its merits, which has the same effect as affirming the judgment below. (This would happen, for example, if the appellant waited too long, under the appellate court's rules, to file the appeal.) In England and many other jurisdictions, however, the phrase appeal dismissed is equivalent to the U.S. term affirmed; and the phrase appeal allowed is equivalent to the U.S. term reversed.
Generally there is no trial in an appellate court, only consideration of the record of the evidence presented to the trial court and all the pre-trial and trial court proceedings are reviewed — unless the appeal is by way of re-hearing, new evidence will usually only be considered on appeal in very rare instances, for example if that material evidence was unavailable to a party for some very significant reason such as prosecutorial misconduct.
In some systems an appellate court will only consider the written decision of the lower court, together with any written evidence that was before that court and is relevant to the appeal. In other systems, the appellate court will normally consider the record of the lower court. In those cases the record will first be certified by the lower court.
The appellant has the opportunity to present arguments for the granting of the appeal and the appellee (or respondent) can present arguments against it. Arguments of the parties to the appeal are presented through their appellate lawyers, if represented, or pro se if the party has not engaged legal representation. Those arguments are presented in written briefs and sometimes in oral argument to the court at a hearing. At such hearings each party is allowed a brief presentation at which the appellate judges ask questions based on their review of the record below and the submitted briefs.
It is important to note that in an adversarial system appellate courts do not have the power to review lower court decisions unless a party appeals it. Therefore if a lower court has ruled in an improper manner or against legal precedent that judgment will stand even if it might have been overturned on appeal.
How an appeal is processed
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