Issues Common in Felony and Misdemeanor Appeals
There are enumerable issues that can be raised on appeal, and the only limitation is the skill and creativity of the appellate lawyer. A top appellate lawyer identifies the important issues and argues them persuasively on appeal.
In Michigan, a person who is convicted of a felony or misdemeanor can appeal their conviction and sentence. After a plea of guilty or no contest, the defendant would have to apply for leave to appeal. An application for leave to appeal is a request for permission to appeal and a showing that there is a good faith basis to request a review of the conviction and sentence. A defendant who is convicted at a bench or jury trial has the right to appeal.
Here are some examples of common appellate issues:
Incorrect Evidentiary Ruling – If a defense lawyer files a motion to exclude or admit contested evidence, the court may have to hold an evidentiary hearing. Trial court judges tend to bend over backward to help police and prosecutors in court, and this can lead to an incorrect evidentiary ruling. Whether or not evidence can be admitted in court is based on the California Evidence Code. Your attorney may argue on appeal that evidence was admitted at trial that should have been excluded. If the issue is reversed on appeal, the charges may be dismissed, or the defendant may get a new trial.
Wrongful Denial of a Motion to Suppress Evidence – A common issue at trial is seeking to suppress certain evidence. For example, evidence that was unlawfully obtained by the police in violation of the 4th Amendment. If this issue is reversed on appeal, the conviction will likely be overturned.
Improper Admission of Testimony or Out of Court Statement – During a criminal trial, the defense attorney may fight to have certain statements you made suppressed, or to admit out of court statements that support your defense. Alternatively, the lawyer may oppose the prosecutor’s introduction of an out of court statement of a third-party against the defendant. Judges are reluctant to admit hearsay testimony; however, when the prosecutor claims there is an exception to the hearsay rule and an out-of-court statement should be admitted, a judge may be persuaded to make an improper ruling.
Insufficient Evidence – At trial, the prosecutor must prove each element of the offense beyond a reasonable doubt. Despite this heavy burden, juries sometimes make mistakes and convict even though the evidence was weak or lacking. If the evidence was sufficiently insufficient, an appellate court could reverse the defendant’s conviction.
Prosecutorial Misconduct – As legal professionals, prosecutors are bound by both law and professional ethics. Under the Michigan Rules of Professional Conduct, a prosecutor is supposed to seek justice, not convictions. Prosecutor’s who cross the line and act unethically at trial can jeopardize the outcome of a trial. If a defendant is convicted and the prosecutor engaged in misconduct, the defendant can raise the issue on appeal.
Ineffective Assistance of Counsel – Every defendant has a constitutional right to effective assistance of counsel. Effective means representation that meets the minimum effectiveness of a qualified criminal defense lawyer. If the lawyer failed to properly investigate a defense, admit favorable evidence, or object to improper evidence and testimony, an appellate court might decide that the trial lawyer was so ineffective that the substantial rights of the defendant were deprived.
Incorrect Jury Instructions – After the prosecution and defense rest their cases and closing arguments are concluded, the judge instructs the jury on the law. It is not uncommon for the prosecution and the defense to disagree about the instructions. Where this is a disagreement, the judge must decide what instruction to give to the jury. On appeal, the defendant can argue that the judge’s decision violated his or her rights or did not accurately reflect the law.
Juror Misconduct – Jurors are subject to strict rules throughout a trial. Also, the lawyers, the defendant, and witnesses must be diligent in avoiding any improper contact or an attempt to influence the jury. If a juror violated the rules and his or her opinion of the evidence was improperly influenced, a conviction might be reversed on appeal. The two most common examples of juror misconduct are when a juror is not truthful during jury selection and when a juror talks with others about the case before permitted to so by the judge.
Excessive or Unlawful Sentence – Various rules limit the sentence a judge may impose on the defendant following a conviction. For example, the Michigan Sentencing Guidelines provide a framework for the judge to consider when deciding on the length of a jail or prison sentence. Other laws limit the maximum and minimum sentences that can be imposed. If the judge violates these rules, the appellate court might reverse the sentence and remand the case back to the trial court for re-sentencing. A sentence must also be proportionate, meaning it cannot be excessive as compared to similarly situated defendants.
Michigan Appellate Attorneys for Criminal Cases
The Defense Team with LEWIS & DICKSTEIN, P.L.L.C., has multiple lawyers who collaborate and work together on criminal appeals. Our combined experience and talent produce results that most lawyers are unable to obtain. If you call us, we will take the time to talk with you, answer your questions, and address your concerns. We will work together to develop a winning strategy.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.