Salem Press

Considering the legal expertise behind the making of film Reversal of Fortune (1990), it is surprising how inaccurately the film depicts the appellate process. The film is based on Harvard law professor Alan Dershowitz's book about the real-life murder case of Claus von Bulow, who was convicted of assault with intent to murder his wife.

In the film, Dershowitz (played by Ron Silver) represents von Bulow (Jeremy Irons) after von Bulow's wife (Glenn Close) dies under suspicious circumstances and von Bulow is convicted. Dershowitz assembles a team of students to help him appeal von Bulow's case. They eventually locate new evidence that is favorable to von Bulow and persuade an appeals court to consider this evidence. The appeals court subsequently reverses von Bulow's conviction and orders him to be tried again. At the new trial, he is acquitted of all charges.

The film errs badly in having the new evidence taken directly to the appeals court. Appellate courts do not consider new evidence and use it as a basis for overturning prior verdicts. A lawyer who uncovers new evidence favorable to a client would first approach the trial court and ask to have the evidence considered and, possibly, have a new trial ordered. If the trial court unreasonably refuses to consider the evidence, then an appeals court might be asked to overturn its decision. However, the appeals court would never be the initial forum in which the new evidence is presented, as is depicted in Reversal of Fortune.

Crime and Punishment in the U.S.
The Appellate Process

Definition: Process through which higher courts review the decisions of subordinate courts

Criminal Justice Issues: Appeals; courts; defendants

Significance: The appellate process provides checks on the criminal justice system by ensuring that errors do not adversely affect the fairness of trial processes and the rights of defendants.

The United States has a dual court system, made up of state and federal courts. Each of these two systems encompasses two or three "tiers," or levels, of courts. The lowest level is made up of trial courts, which hear evidence and reach decisions based upon that evidence. The next tier, or tiers, is made up of appellate courts. These courts do not hear evidence but review the records of what has taken place in the trial courts. Some states have two appellate tiers, consisting of an intermediate appellate court and a court of "last resort." In other states, there are only two tiers: the trial courts and the courts of last resort.

The federal court system has three tiers, but few cases ever proceed to the highest federal court--the U.S. Supreme Court. There are also some situations in which the Supreme Court hears appeals from state courts of last resort.

Appellate courts do not automatically review every case handled by trial courts and assume jurisdiction over only cases that are appealed to them by aggrieved parties. There are usually fairly stringent time limits for making appeals, and it is common for appellate courts to require that appeals be brought within thirty days of the decisions being appealed. However, after the appellate court is given notice that an appeal has been filed, it may take several months for the record to be assembled at the trial court level and forwarded to the appellate court for review. Assembling the record often requires that court reporters transcribe testimony taken at the trial, which can be time-consuming. After the records are delivered to the appellate court, the parties prepare briefs containing their arguments and the applicable law. Sometimes the parties are asked to argue their cases in person before the appellate court so that the court can ask questions about the issues.

Unlike trial courts, which are usually presided over by lone judges, appellate courts usually have panels of judges. In court systems with two appellate levels, panels of the intermediate courts are small--usually only three or five judges, while the courts of last resort typically have nine members--as does the U.S. Supreme Court. Judges who serve on appellate courts of last resort are usually called "justices," as are the members of the U.S. Supreme Court.

After an appeal is heard, one member of a panel is usually assigned to write an opinion representing the majority position of the panel. Sometimes the panel cannot reach a unanimous decision, and members who disagree write opinions known as dissents.

In reviewing lower-court decisions for error, appellate courts usually limit their reviews to errors that are brought to the attention of the trial courts, through either objections or some sorts of motions. This process is known as preserving an error, or making a record. If an error is not properly preserved, the appellate court reviews a case only if it raises a matter of fundamental importance or if it has actually caused prejudice to the complaining party.

Appellate Court Decisions
Appellate courts issue their decisions in documents called opinions or memorandum decisions. Written decision of the courts include reasons for the decisions and the facts on which the decisions are based. At the conclusion of an opinion, the court explains whether it agrees with the trial court's decision or believes that the trial court has made some type of error. When the court's opinion agrees with that of the trial court, the opinion states, "affirmed." If the opinion disagrees with that of the trial court, it may state, "reversed" or "reversed and remanded." When as case is reversed or remanded, the court explains why it thinks the original decision was wrong and instructs the trial court to modify its result or rehear the case.

Appellate courts follow a doctrine known as stare decisis, which requires courts to adhere to their own prior decisions and those of the courts above it. This principle lends certainty and predictability to the law and provides a framework for the decision-making processes of individual judges. Although judges may be otherwise swayed by the equities of particular cases, they are bound to follow prior law--or "precedent"--in reaching their decisions. Occasionally, courts decide to depart from their prior decisions and "overrule" them. From that moment, the new decisions govern.

The U.S. Supreme Court is the highest court in the federal system but does not always hear appeals from the intermediate federal courts, known as courts of appeal. Only a small class of federal cases are automatically entitled to appeals to the Supreme Court. The remainder are only heard if they present particularly novel or important issues. This discretionary type of appeal is known as certiorari appeal. The Supreme Court also has the authority to hear certiorari appeals of state court decisions when they are state courts of last resort and they raise issues of federal constitutional law. It is estimated that the Supreme Court hears only about 3 percent of the cases for which certiorari appeals are sought.

Sharon K. O'Roke

Further Reading
Chapper, Joy. Understanding Reversible Error in Criminal Appeals. Williamsburg, Va.: The Center, 1989. Primer written by the chief deputy clerk for the Court of Appeals for the District of Columbia.

Coffin, Frank M. On Appeal: Courts, Lawyering, and Judging. New York: W. W. Norton, 1994. Judge's inside view of the appellate process in the U.S. Court of Appeals for the First Circuit. Coffin tells exactly how his court processes appeals, from receipt of the briefs, through oral argument, and on to final decisions.

Greenberg, Ellen. The Supreme Court Explained. New York: W. W. Norton, 1997. The basics of the Supreme Court, including the process and rules in clear terms. Tracks the flow of cases through the Court.

Wasserman, David T. A Sword for the Convicted: Representing Indigent Defendants on Appeal. Westport, Conn.: Greenwood Press, 1990. Study of indigent criminal appellate representation in the United States, using New York City as a research model.

See Also
Criminal justice system; Criminal procedure; False convictions; Judicial system, U.S.; Suspended sentences.