Appeal and Postconviction Review
Course
Court Systems
and Practices
Unit XIII
Appeal and
Postconviction
Review
Essential
Question
When can a
successful
appeal occur?
TEKS
§130.296(c)
(4)(E)
Prior Student
Learning
Trial
Estimated Time
4 to 6 hours
Rationale
An important part of the criminal justice process is the right of the convicted
defendant to appeal his or her case when he or she did not receive a fair trial.
An attorney will need to know how to file an effective appeal on his or her
client’s behalf.
Objectives
The student will be able to:
1. Define what an appeal is
2. Identify when an appeal can be filed
3. Propose reasons why a student’s client should win an appeal in a role
playing situation
4. Critique the arguments other students make on behalf of their clients
Engage
Use the following scenario and questions for a class discussion or a writing
assignment. Scenario: You are wrongfully convicted of a crime. You want a
new trial. Questions: What do you think you and your attorney must show to
the appellate court with the hope of getting a new trial or bring set free? Use
the Discussion Rubric or Writing Rubric as needed for assessment.
Key Points
I. What is an Appeal?
A. When defendants are found guilty of a crime in court, they have the
right to appeal their case
B. An appeal is a request to a higher court to review and change the
decision of a lower court
C. The courts the defendants appeal to are known as appellate courts
D. In an appeal, the defendants argue that an error occurred during their
trial that affected their chance of a fair trial, or their “substantial right”
E. The appellate court will do one of the following
1. Order a new trial
2. Let the defendant go
3. Uphold the original verdict
F. If the appellate court upholds the original verdict, the defendants can
continue appealing their case to higher courts
II.
When Does an Appeal Occur?
A. An appeal does not take place until the trial court enters a final
judgment
B. An appeal usually has to be filed within a short period – 7 to 10 days
of the verdict
C. Defendants may have to file a paper called “notice to appeal very
soon”
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D. Technically, the appeals process can begin the day of the verdict
E. Defendants can ask the judge to overturn the jury’s verdict
F. If the verdict is by a judge and not a jury, defendants can ask the
judge to modify or withdraw his or her verdict and order a new trial
III. What Are the Steps of the Appeal Process?
A. The defendants file a notice of appeal
B. The appellate court sets a schedule about when briefs are due and
when oral arguments are to be made
C. Briefs are submitted and oral arguments are made
D. The appellate court makes a decision after a few days, weeks, or
even months
IV. What Happens During an Appeal?
A. The appeals process can take many months and go through more
than one appellate court
B. A transcript of the trial is produced
C. The prosecution and the defense prepare briefs and respond to each
other’s briefs
D. A brief typically refers to specific parts of the trial transcript and prior
court decisions related to the case
E. There are usually three briefs in an appeal
1. The appellant files an opening brief
2. The respondent files a respondent brief
3. The appellant files a reply brief
F. After the briefs are filed, the lawyers may appear before the appellate
court or the court may just make their decision based on the briefs
G. If the attorneys do speak before the appellate court, the appearance
may be quick and the discussion may be limited to specific questions
V.
What Is Needed for an Appeal?
A. Appellate court judges’ rulings are based only on the trial court record
which includes
1. A transcript of testimony
2. Things admitted into evidence
3. Each side’s arguments
B. Information that each side unsuccessfully sought to introduce into
evidence
C. The appellate court will not consider evidence that the trial court did
not have a chance to rule on
D. A good attorney will have done the following during the trial:
1. Made offers of proof by giving a summary to the judge of what the
witnesses will say, in case the judge rules the testimony as
inadmissible
2. Translated gestures into words so that appellate judges who are
reading the transcript can picture what the participants in the court
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room are doing or being asked to do
3. Made all legitimate objections and arguments so that the trial court
would have had a chance to rule on the admissibility of evidence
VI. What are the Reasons for Appeal?
A. The following are some examples on which a defendant would have
grounds to appeal
1. New evidence was discovered after the trial
2. The jurors engaged in misconduct
3. The judge or prosecutor committed an important legal error
4. The judge gave the jury improper instructions
5. Scientific evidence was not available at the time of the trial that
would prove the defendant innocent
VII. What Is the Philosophy of Appellate Courts?
A. The courts have said that no one is entitled to a perfect trial, just a fair
one
B. Most errors are deemed harmless by the appellate courts
VIII. What Are Writs?
A. A writ is an order from a higher court to a lower court or government
official
B. They are used when the defendants are not entitled to an appeal
C. Defendants may not be entitled to appeal when
1. The defense did not lodge a timely objection
2. The matter of issue concerns something that goes beyond the trial
record
3. A final judgment has not yet occurred but the defendants need
relief at once to prevent an injustice or an unnecessary expense
4. The matter is urgent
5. The defendants have already unsuccessfully appealed their case
Activities
1. Completion of the Appeals and Postconviction Review Quiz. The quiz may
be open-note and used as a study guide for the Appeals and
Postconviction Exam.
2. Have students research actual cases where people are filing for an appeal
(another option is to have students create their own for other students to
use in this activity). Then have the student play the role of the defense
attorney and write a brief on the client’s behalf. You may choose to have
another student play the role of the state and write a respondent brief, and
a separate group of students to play the role of the appellate court and
evaluate the brief(s). Have the students decide to let the defendant go,
give a new trial, or deny the appeal. The appellate court students must
defend their decision to the instructor. Use the Debate Rubric for
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assessment.
Assessments
Appeals and Postconviction Review Exam and Key
Appeals and Postconviction Review Quiz and Key
Debate Rubric
Discussion Rubric
Presentation Rubric
Writing Rubric
Materials
Appeals and Postconviction Review computer-based presentation
Access to a computers with Internet access
Resources
1413310532, The Criminal Law Handbook: Know Your Rights, Survive the
System (11th Edition) by Paul Bergman, J.D. and Sara J. Berman, J.D.
Accommodations for Learning Differences
For reinforcement, students will put themselves in the place of a client
needing a good defense attorney for a trial and an appeal. They must write
out indicators of high quality attorneys that would most likely be successful.
These indicators need to consist of actions these attorneys take in the trial
court that will help them with a future possible appeal. Use the Writing Rubric
for assessment.
For enrichment, students will research cases where writs were issued and
then present the details of the cases to the class. Use the Presentation Rubric
for assessment.
State Education Standards
Texas Essential Knowledge and Skills for Career and Technical Education
§130.296. Court Systems and Practices (One to Two Credits).
(4)
The student examines the steps by which a criminal charge is
processed through pretrial, trial, adjudication, and the appellate
stages. The student is expected to:
(E) identify the trial process from pretrial to sentencing;
College and Career Readiness Standards
English/Language Arts Standards
I. Writing
A. Compose a variety of texts that demonstrate clear focus, the logical
development of ideas in well-organized paragraphs, and the use of
appropriate language that advances the author’s purpose.
1. Determine effective approaches, forms, and rhetorical
techniques that demonstrate understanding of the writer’s purpose
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and audience.
2. Generate ideas and gather information relevant to the topic and
purpose, keeping careful records of outside sources.
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Name________________________________
Date__________________________
Appeal and Postconviction Review Exam
_____1. An appeal is a request to a higher court to review and change the decision of a lower
court.
a) True
b) False
_____2. Trial courts are the types of courts that defendants can appeal to.
a) True
b) False
_____3. In an appeal, defendants argues that their ___________has been affected.
a) Impartial Trial
b) Substantial Right
c) lmpartial Right
d) Perfect Trial
_____4. In an appeal, what will the appellate court not do?
a) Order a new trial
b) Let the defendant go
c) Uphold the original verdict
d) None of the above
_____5. John is found guilty of drug trafficking. He insists his actions were misinterpreted by
law enforcement. The appellate court does not agree with him and upholds the
original verdict. John wants to know if there is anything else he can do. You are his
defense attorney. What will you tell him?
a) There is nothing that can be done. He must accept the verdict.
b) He can appeal to a higher court
c) He can take his case back to the lower court to see if they will retry him.
d) A or C only
Matching:
_____6. When does an appeal take place?
_____7. When can the appeals process begin?
_____8. Within how many days does an appeal usually have to be filed?
a) When the trial court enters a final judgment
b) 7 to 10 days
c) The day of the verdict
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_____9. Jake has been found guilty of burglary. You are his attorney and he insists that he is
innocent. What paper must you file on his behalf to start the appeal process?
a) Appeal notification
b) Notification of appeal
c) Notice to appeal
d) Notice to appeal very soon
_____10. You are the defense attorney for Katherine who has just been found guilty by a jury of
assault. You disagree with the verdict. What can you specifically ask the judge to do?
a) Overturn the jury’s verdict
b) Examine the trial transcript to see what illegal objections or moves the prosecution
made during the trial
c) Tell the jury to reconsider
d) Nothing
e) a or c only
_____11. You eventually get a new trial for Katherine and the judge who hears the case finds
her guilty. What can you specifically ask the judge to do?
a) Modify his verdict
b) Examine the trial transcript to see what illegal objections or moves the prosecution
made during the trial
c) Order a new trial
d) Nothing
e) a or c only
_____12. Select the correct chronological order of the appeal process.
a) 1) The appellate court sets a schedule about when briefs are due and when oral
arguments are to be made
2) The appellate court makes a decision after a few days, weeks, or even months
3) Briefs are submitted and oral arguments are made
4) The defendant files a notice of appeal
b) 1) The defendant files a notice of appeal
2) Briefs are submitted and oral arguments are made
3) The appellate court sets a schedule about when briefs are due and when oral
arguments are to be made
4) The appellate court makes a decision after a few days, weeks, or even months
c) 1) The defendant files a notice of appeal
2) The appellate court sets a schedule about when briefs are due and when oral
arguments are to be made
3) Briefs are submitted and oral arguments are made
4) The appellate court makes a decision after a few days, weeks, or even months
d) 1) The appellate court sets a schedule about when briefs are due and when oral
arguments are to be made
2) The defendant files a notice of appeal
3) The appellate court makes a decision after a few days, weeks, or even months
4) Briefs are submitted and oral arguments are made
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_____13. Your client Jenna, who you are filing an appeal on behalf of, believes that she
remembers a witness for the prosecution on her trial say something that would give
her good reason to have her verdict overturned. What will you need to get that would
have been produced at the trial that will help you verify what Jenna believes?
a) A diary
b) A video
c) A transcript
d) A recording
_____14. As a defense attorney, what are you going to prepare for the prosecution that will refer
to specific parts of the trial so they can properly respond to your arguments, and that
the prosecution will likewise prepare for you?
a) A summary
b) A brief
c) An appeal
d) A complaint
_____15. How many types of the above answer are there usually?
a) One
b) Two
c) Three
d) Four
_____16. The lawyers will always appear before the appellate court to present their side.
a) True
b) False
_____17. What specifically do appellate court judges base their rulings on?
a) The trial court record
b) The evidence
c) The police report
d) The arguments of the attorneys
_____18. What does the answer to the above question not include?
a) A transcript of testimony
b) Things admitted into evidence
c) Each side’s arguments
d) A statement of sorrow by the defendant
e) Information that each side unsuccessfully sought to introduce into evidence
_____19. Sam is your client and he has been found guilty of murder. You are appealing his
case to the appellate court judges. What will they not consider about Sam’s case?
a) The fingerprints on the gun that the jury was not allowed to examine
b) The creditability of the prosecution’s expert witness
c) The misleading statements of the prosecution during the closing statement
d) The perjury of one of the prosecution’s witnesses
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_____20. What would you have done during the trial to have helped Sam’s chance of an
appeal?
a) Shown how Sam’s testimony about his whereabouts at the time of the murder
align with the department store surveillance video at the location where he said
he was at the time of the murder
b) Asked the witnesses to clarify what they meant when they demonstrated
gestures with their body language
c) Made all legitimate objections and arguments
d) All of the above
_____21. What is an example on which defendants would have grounds to appeal?
a) New evidence was discovered after the trial
b) The jurors engaged in misconduct or the judge gave the jury improper
instructions
c) The judge or prosecutor committed an important legal error
d) Scientific evidence was not available at the time of the trial that would prove the
defendant innocent
e) All of the above
_____22. What kind of trial is a person entitled to?
a) A perfect one
b) A good one
c) A fair one
d) A decent one
_____23. Very few of the errors in a trial are deemed harmless by an appellate court.
a) True
b) False
_____24. Your client has no grounds for an appeal. You have one option left that will get your
client a new trial. This would be an order from a higher court to the court your client
was tried in saying that your client must have a new trial. What is it you are hoping the
higher court will agree upon and give?
a) A command
b) A recommendation
c) A writ
d) A reprimand
_____25. Defendants are entitled to an appeal when the defense did not lodge a timely
objection.
a) True
b) False
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_____26. Defendants are not entitled to an appeal when the matter of issue concerns
something that goes beyond the trial record.
a) True
b) False
_____27. Defendants are entitled to an appeal when a final judgment has not yet occurred, but
they need relief at once to prevent an injustice or unnecessary expense.
a) True
b) False
_____28. Defendants are entitled to an appeal when the matter is urgent.
a) True
b) False
_____29. Defendants are not entitled to an appeal when they have already unsuccessfully
appealed their case.
a) True
b) False
_____30. Defendants are entitled to an appeal when the matter of issue concerns something
that goes beyond the trial record.
a) True
b) False
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Appeal and Postconviction Review Exam Key
1. A
2. B
3. B
4. D
5. B
6. A
7. C
8. B
9. D
10. A
11. E
12. C
13. C
14. B
15. C
16. B
17. A
18. D
19. A
20. D
21. E
22. C
23. B
24. C
25. B
26. A
27. B
28. B
29. A
30. B
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Name________________________________ Date__________________________
Appeal and Postconviction Review Quiz
What is a request to a higher court to review and change the decision of a lower court?
1.___________________________________________________________________________
What types of courts can defendants appeal to?
2.___________________________________________________________________________
In an appeal, defendants argue that an error occurred in their trial that affected their chance of a
fair trial. What kind of right are they referring to that was violated?
3.___________________________________________________________________________
Name the three things the appellate court can decide to do on a case.
4.___________________________________________________________________________
5.___________________________________________________________________________
6.___________________________________________________________________________
What can defendants do if the appellate court upholds the original verdict?
7.___________________________________________________________________________
When does an appeal take place?
8.___________________________________________________________________________
Within how many days does an appeal usually have to be filed?
9.___________________________________________________________________________
When can the appeals process begin?
10.__________________________________________________________________________
What is the name of the paper defendants must file for an appeal?
11.__________________________________________________________________________
If it is a jury that finds a defendant guilty, what can the defendant ask the judge to do?
12.__________________________________________________________________________
If it is a judge that finds a defendant guilty, what can the defendant ask the judge to do?
13.__________________________________________________________________________
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What is the correct chronological order of the appeal process?
14.__________________________________________________________________________
15.__________________________________________________________________________
16.__________________________________________________________________________
17.__________________________________________________________________________
What is produced at the trial?
18.__________________________________________________________________________
What do the prosecution and defense prepare and respond to that typically refers to specific
parts of the trial transcript and prior court decisions related to the case?
19.__________________________________________________________________________
How many types of the above are there usually?
20.__________________________________________________________________________
Will the lawyers always appear before the appellate court to present their sides?
21.__________________________________________________________________________
What specifically do appellate court judges base their rulings on?
22.__________________________________________________________________________
What is the below a part of?
-A transcript of testimony
-Things admitted into evidence
-Each side’s arguments
-Information that each side unsuccessfully sought to introduce into evidence
23.__________________________________________________________________________
What do the appellate court judges not consider when ruling on a case?
24.__________________________________________________________________________
List the three things a good attorney would do during the trial that would improve his or her
chances in an appeal? (Short answer version)
25.__________________________________________________________________________
26.__________________________________________________________________________
27.__________________________________________________________________________
What is an example that a defendant would have grounds to appeal on?
28.__________________________________________________________________________
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What kind of trial is a person entitled to?
29.__________________________________________________________________________
What are most errors deemed by the appellate courts?
30.__________________________________________________________________________
What is an order from a higher court to a lower court, or to a government official, that is used
when a defendant is not entitled to an appeal?
31.__________________________________________________________________________
Name at least two circumstances in which a defendant might not be entitled to appeal?
32.__________________________________________________________________________
33.__________________________________________________________________________
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Appeal and Postconviction Review Quiz Key
1. An appeal
2. Appellate Courts
3. Substantial right
4. Order a new trial
5. Let the defendant go
6. Uphold the original verdict
7. Continue appealing to higher courts
8. When the trial court enters a final judgment
9. 7 to 10 days
10. The day of the verdict
11. Notice to appeal very soon
12. Overturn the jury’s verdict
13. Modify the verdict or withdraw from the verdict and order a new trial
14. The defendant files a notice of appeal
15. The appellate court sets a schedule on when briefs are due and oral arguments are made
16. Briefs are submitted and oral arguments made
17. The appellate court makes a decision after a few days, weeks, or even months
18. A transcript
19. A Brief
20. Three
21. No
22. The trial court record
23. The trial court record
24. Evidence the trial court did not have
25. Make offers of proof
26. Translate gestures into words
27. Make all legitimate objections and arguments
28. New evidence was discovered after the trial or the following answers:
-The jurors engaged in misconduct
-The judge or prosecutor committed an important legal error
-The judge gave the jury improper instructions
-Scientific evidence was not available at the time of the trial that would prove the defendant
innocent
29. A fair one
30. Harmless
31. Writ
32. The defense did not lodge a timely objection
33. The matter of issue concerns something that goes beyond the trial record
Or the following answers
-A final judgment has not yet occurred but the defendant needs relief at once to prevent an
injustice or unnecessary expense
-The matter is urgent
-The defendant has already unsuccessfully appealed their case
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Name:____________________________________
Date:_____________________________________
Debate Rubric
Objectives
4 pts.
Excellent
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Information
Clear, accurate and thorough
Facts, statistics and/or examples
used to support major points.
Communication
Respectful body language
Respectful responses
Focused/On-topic
Sarcasm avoided
Participation
Full participation
Attentive listening
Total Points (32 pts.)
Comments:
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Name_______________________________________
Date_______________________________
Discussion Rubric
Objectives
4 pts.
Excellent
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Participates in group discussion
Encourages others to join the
conversation
Keeps the discussion progressing
to achieve goals
Shares thoughts actively while
offering helpful recommendations to
others
Gives credit to others for their ideas
Respects the opinions of others
Involves others by asking questions
or requesting input
Expresses thoughts and ideas
clearly and effectively
Total Points (32 pts.)
Comments:
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Name:____________________________________
Date:_____________________________
Presentation Rubric
4 pts.
Excellent
Objectives
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
Topic/Content
 Topic discussed completely and in-depth
 Includes properly cited sources (if used)
Creativity/Neatness
 Integrates a variety of multimedia effects
to create a professional presentation
(transition and graphics) or appropriate
visual aid used
 Title slide, table of contents, bibliography
are included, using acceptable format
Mechanics
 Grammar, spelling, punctuation, and
capitalization are correct
 Image and font size are legible to the
entire audience
Oral Presentation
 Communicates with enthusiasm and eye
contact
 Voice delivery and projection are
dynamic and audible
Audience Interaction
 Presentation holds audience’s attention
and relates a clear message
 Clearly and effectively communicates the
content throughout the presentation
Total Points (20 pts.)
Comments:
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Name:____________________________________
Date:_____________________________
Writing Rubric
4 pts.
Excellent
Objectives
3 pts.
Good
2 pts. Needs Some
Improvement
1 pt. Needs Much
Improvement
N/A
Pts.
The writing has all required parts from
introduction to conclusion in smooth
transition.
The writing is interesting, supportive,
and complete.
The writing demonstrates that the
writer comprehends the writing
process.
Accurate spelling, grammar, and
punctuation
The content of paragraphs
emphasizes appropriate points.
The writer shows an understanding of
sentence structure, paragraphing, and
punctuation.
All sources and references are clearly
and accurately documented.
Total Points (28 pts.)
Comments:
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