Right to a Trial

I taught at FSU for a number of years in the School of Criminology.  No matter what course I was teaching I always spent the first day asking the students questions and allowing them to question me.  It always surprised me the misperceptions of the criminal justice system.  Having worked in the system, these misperceptions are common even among those who should know better.  Please don’t take this as LEO bashing.  It’s not.  I have many friends and former students in law enforcement and believe they have a very hard job (especially the correctional officers – doing time on the job).  Here are a few myths that I have heard many times.  Please keep in mind that these are generally true statements and I am sure there are exceptions to each of my myths below because judges can basically do what they want until a higher court tells them otherwise. Sometimes that doesn’t even stop them…

1.       Everyone has a right to a trial.

Well duh.  Everyone seems to know that an accused person has a right to a trial, but most don’t realize they only have a RIGHT to ONE trial. 

I will cover double jeopardy in a minute, but most seem to think that appeals are a form of a trial.  They are not.  There is no NEW evidence submitted in an appeals court and these courts do not have juries.    The only things appellate courts decide are issues of law.  Furthermore, unless the accused preserves their right to appeal in the trial, they can’t appeal.  What does it mean to preserve the issue?  It means the person’s attorney better understand not only case law, but appealable ‘issues.’  An issue is a matter of law that is in question (see above – issues of law only, this does include procedures).  Usually attorney must object to the error when it occurs.  Since Constitutional claims are greater than other claims, the appellate courts will sometimes be more lenient to review the issue even if it was not preserved in the trial court’s record.  Also, appeals courts will only decide issues that ‘matter’ or errors that made a difference in the outcome at trial.  I have read many cases where the appeals court says that there was an error by the trial court, but that it was a ‘harmless’ error and did not affect the outcome obtained by the defendant.  An issue ‘matters’ when:  1. The alleged violation clearly deprives the defendant a fair trial.  2.  There is sufficient record to review the alleged violation. 

Each system has specific rules that dictate how appeals are begun.  These vary across jurisdiction.  Speaking of jurisdiction, another common misconception is that there is a single jurisdiction.  This is not the case.  Courts hear cases dependent on location of crime/event (where it happened), location of plaintiff (where those involved live), type of event (civil vs. criminal), size of event (how much was taken?), who files (state vs. individual), and specific law violated (can be federal or state).  Trial courts often put a time limit on appeals.  Sometimes as short as three days and sometimes ranging up to months.  In the federal criminal court system, the defendant must file a notice of appeal within 10 days of the judgment/order or the right to appeal is forfeited.

A court’s ability to hold a trial depends also on its original jurisdiction.  Mostly the Supreme Court is a court of appeal, but it can hear some cases as a trial court.  These cases are generally two states (or a state and the federal government) asking the court to decide an issue.  The Supreme Court does not have original jurisdiction for criminal courts.  Interestingly, the Supreme Court will not offer opinions on hypothetical cases.  Meaning when George Washington asked John Jay (first Chief Justice) whether a foreign policy was legal, John Jay said that the Supreme Court is limited to the cases in front of it.  That makes sense.  Think about it.  How many cases hinge on one piece of evidence that changes the outcome?  For example, did Zimmerman continue following Trayvon after he was advised against it by the operator?  That one answer can mean all the difference for the outcome in that case.    

Also, to appeal a person has to have ‘standing.’  Standing basically means that the outcome of the trial will directly affect the person filing the appeal.  The appellate court can only hear issues of law.  The appeals courts will not, cannot, decide issues of fact.  They accept the facts as found by the trial court.  The only thing the appellate court can decide is whether the lower court followed the procedures they were supposed to.  This brings us to what an appellate court can do.

It can reverse a decision by a lower court judge.  Most defendants hope for this or they wouldn’t file.  This means the appellate court finds the lower court wrong in its application of the law or procedure and disregards the lower courts order or judgment.  It can reverse and remand, which means the appellate court, finds that the lower court made a significant error and tells them to correct the error and try again.  The most common thing an appellate court does is called a PCA, or per curiam affirmed.  Appealing probably won’t matter much anyway.  Reversals of lower court decisions by appellate courts are not as common as you’d think.  A 2005 study in the Florida State University Law Review showed that 87-99% of federal guilty verdicts are upheld on appeal.  A study of state courts found that between 70-80% guilty verdicts were upheld on appeal.

Tomorrow – when you may be subject to double jeopardy.