Arguments for Overturning a Conviction on Appeal in California

Appealable Pre-Trial Errors

Some appealable errors occur before the trial even begins. When such an error occurs, a defense attorney must file a motion informing the court of the error and requesting the relief to which you are entitled, whether it be dismissal of the charges, exclusion of evidence, or limitations on testimony by a state’s witness. The court’s denial of a proper motion may provide grounds for appeal. The most common errors that defense attorneys raise are described below.

1. Evidence used to arrest, charge, or indict you for a crime was obtained in violation of the Fourth Amendment right to be free from unlawful searches and seizures. This includes a warrantless search without probable cause or a warrant that was insufficient to allow the authorities to search. An indictment against you must be based on probable cause. If there is not enough legally obtained evidence to charge you with an offense, a pre-trial motion to dismiss the case has merit and should be granted.

   Your attorney may also file a pre-trial motion asking the court to suppress or prohibit the use of evidence obtained in violation of the Fourth Amendment. Denial of the motion may support an appeal.

2. The police used suggestive procedures to identify you as the perpetrator of the crime. Eyewitness identification is often used to as a basis for charging a person with a crime. If the lineup or other procedure for identification was skewed to lead a witness to identify you as the perpetrator, an indictment against you may be improper.
3. Evidence used to charge or indict you for a crime was obtained in violation of your Fifth Amendment right against self-incrimination. If the authorities investigating the crime did not inform you of your right to remain silent or your right to have an attorney present (“Miranda” rights) before interrogating you, the answers you give, even a full confession, may not be used to indict you for the crime. Likewise, if the authorities pursued interrogation after you invoked your right to remain silent, any incriminating statements cannot be the basis of an indictment.

   Your attorney may also file a pre-trial motion asking the court to suppress or exclude any statements you made that were obtained in violation of the Fifth Amendment. If this motion has merit and the court denies it, the denial may be the subject of an appeal.

4. The indictment against you is invalid because it does not allege all the elements necessary to charge you with a crime. An indictment, to be sufficient to charge you with an offense, must allege that legally sufficient evidence supports every element of the crime charged, including knowledge and intent. If the indictment fails to allege all the necessary factors, your attorney may file a motion to dismiss the indictment, the denial of which will support an appeal.
5. The court lacks jurisdiction over the case. California has explicit laws that designate where certain cases may or must be brought. For example, a California state court would not have jurisdiction to try you for a crime committed solely in another state or for a federal crime. If the charges against you were filed in the incorrect court, your attorney will file a motion to dismiss the indictment.
6. You were deprived of your Sixth Amendment right to counsel. You have the right to have an attorney present at all critical stages of the trial, including during an interrogation, at the arraignment and preliminary hearing, during plea agreement negotiations, and during trial. If you invoked this right and were nevertheless forced to proceed without an attorney, your rights have been violated and may support an appeal.
7. You are being tried for a crime for which the statute of limitations has run. The law provides time limits for bringing a charge against a person after the crime was committed. These are known as “statutes of limitation.” If the limitations period has run, the state may no longer prosecute you for the crime. Once your defense attorney raises a valid statute of limitations defense, the trial court must dismiss the case against you. Failure to do so can support an appeal.
8. You were brought to trial in violation of California’s law regarding speedy trials or the Sixth Amendment right to a speedy trial. The state must start the trial against you within a certain amount of time (usually 60 days for a felony in California) after your arraignment, which is the hearing in which you are informed of the charges against you. Ordinarily, if it fails to do so and you are prejudiced by the delay, the court should dismiss the case upon proper motion (called a “Serna motion”).
9. Trying you for the charged crime will violate your Fifth Amendment right not to be tried twice for the same crime (“double jeopardy”). If the judge previously dismissed a charge against you based on the same conduct, or if you have already gone through trial and were acquitted, the state cannot try you again for the same offense. If you are brought to trial in violation of the Fifth Amendment’s prohibition against double jeopardy, you can appeal the denial of a motion to dismiss the current charge.
10. You are not competent to stand trial, but the court either denies a request for a competency hearing or proceeds with the trial despite the lack of competence. The Sixth Amendment guarantees a person a fair trial. Trying a person who is incompetent to stand trial violates that guarantee. To be competent, you must understand the nature of the criminal process and the proceedings brought against you; be able to assist your counsel in your defense of the charge; and understand your own status and condition in the criminal proceedings. An appeal may lie for competency issues.
11. The court denied a motion to hold separate trials for co-defendants (known as a “Burton” motion). In California, persons who are charged with committing a crime together are also tried together. However, if your interests are not aligned with those of the co-defendant(s), you may be prejudiced by being tried with one or more co-defendants. For instance, if the co-defendant made incriminating statements about the offense or has a long criminal record while you have maintained silence and have an insignificant criminal record, you may be convicted solely because of your relation to the co-defendant. To avoid such prejudice, the court, upon motion by the defense attorney, may be obligated to “sever” the trials. Failure to do so can provide a ground for appeal.
12. The court denied a motion to require separate trials for separate cases against you. If you have several cases pending against you involving different victims, different facts, and different time periods, it may be prejudicial to you to have all of the cases tried in a single proceeding. A jury may convict you just because it believes that you would not be charged with all those cases if you weren’t guilty. A judge’s refusal to sever cases can support an appeal of your conviction.
13. The court wrongly denied a motion for a change of venue. Sometimes, the circumstances of a crime are the subject of widespread pre-trial publicity in the area in which it was committed, which can infect a potential juror’s impartiality and ability to decide a case based on the evidence presented at trial. In such a case, your attorney may file a motion for a change of venue, asking that the trial be moved to another city or location to enable you to receive a fair trial. If the court denies the motion, you may have grounds for an appeal.
14. You are being tried under a law that is unconstitutional. You must be charged with and tried for breaking a law that is constitutional; otherwise, your constitutional rights, whether under the United States Constitution or the California Constitution, will be violated. If your attorney shows in a pre-trial motion to dismiss that the law is unconstitutional, the denial of that motion supports an appeal.
15. The court improperly denied a motion for discovery of the prosecutor’s evidence. The prosecutor in a criminal case has the responsibility to provide you with evidence in its possession or control that is exculpatory; that is, favorable to you or your defense. Your attorney has the right to seek discovery of other materials in the prosecutor’s possession that were not voluntarily turned over. If the court denies the motion, such denial may be raised on appeal.
16. The court improperly denied a motion to suppress or a motion in limine. If your constitutional rights were violated prior to the trial, your attorney will file a motion to suppress any evidence obtained by such violation. Your attorney may also file what is called a motion in limine, which is a motion requesting the court to exclude or allow certain evidence or testimony that may be unduly prejudicial to your case. For instance, your attorney may file a motion in limine to exclude evidence of your prior convictions or of character evidence of one of your witnesses. Denial of a motion to suppress or motion in limine will support an appeal.
17. The court improperly denied your request to represent yourself at trial. While you have the right to an attorney when charged with a criminal offense, you also have the right to represent yourself. Such a tactic is not recommended because a layperson generally lacks the knowledge and experience that a lawyer has of the applicable law and court procedures. However, if you make a competent decision to represent yourself, and the judge denies your request, you may have grounds for an appeal.
18. The court denied your motion to withdraw your guilty plea. If you entered a plea of guilty to a charge and later wish to retract that plea, you can apply to the court to withdraw that plea for “good cause.” If you are able to show good cause, such as the failure of your attorney to inform you of the consequences of your plea or the failure of the state to live up to the agreement, you may have a basis for an appeal if the court denies your motion.

1. Appealable Pre-Trial Errors
2. Appealable Trial Errors

Appealable Trial Errors

Each criminal trial is unique, involving evidence and witnesses specific to the crime charged. The errors that can occur during the course of a trial are too numerous to list. Some of the most common errors that will support an appeal appear below.

1. Jury selection was improper. A prosecutor may not seek to have certain races or genders excluded from the jury. Such conduct would violate your right to a fair trial. If the prosecutor exercises his or her right to exclude potential jurors based on their race or gender, jury selection was improper and may be the basis of an appeal.
2. The court violated your right to a public trial. Every person charged with a crime has the right to a public trial. In cases involving pre-trial publicity or when the circumstances of the crime are particularly inflammatory or result in disruption of courtroom procedure, a judge may attempt to exclude the public from the trial. A judge’s order closing a trial may support an appeal.
3. You were forced to appear in court before the jury in jailhouse clothing or in shackles. Such an appearance may prejudice the jury against you, since they may assume that you are a criminal and guilty of the crime with which you are charged. You have the right to appear in court in street clothing to prevent this prejudice.
4. You were improperly excluded from the courtroom. You have the right to be in the courtroom during the proceedings against you. If events took place without you, the conduct of the court may be an appealable error.
5. The judge or prosecutor communicated with the jury outside of your presence or your attorney’s presence. The judge or prosecutor may not speak to the jury outside of your or your attorney’s presence since doing so may sway the jury in the state’s favor. Such communication may be grounds for an appeal.
6. The judge wrongfully admitted or excluded evidence or testimony. As stated above, your attorney may have filed a motion to suppress or a motion in limine to exclude or admit certain evidence based on a violation of your constitutional rights or undue prejudice. If, during the trial, your attorney again objects to the introduction or exclusion of evidence or testimony ad the court denies the objection and allows or prohibits evidence or testimony, the denial may support an appeal.
7. The court limited your attorney’s cross-examination of a witness or witnesses. You have the right to cross-examine or question any witness who testifies against you. If the court unreasonably limited your attorney’s ability to fully cross-examine a witness or to “impeach” him or her (undermine his or her testimony by showing conflicts with a prior statement or showing that he or she committed a crime involving dishonesty), this limitation may be the basis of an appeal.
8. Your attorney had a conflict of interest. If your attorney has any interest that is contrary to your best interest, his or her representation constitutes a conflict of interest. For example, if you and another person are charged in connection with the same crime and tried together, an attorney may have a conflict of interest if your interests and those of the other defendant are not aligned. An attorney may also have a conflict if he or she had an acquaintanceship with a state’s witness. A conflict of interest should disqualify the attorney and will provide the grounds for an appeal.
9. Your attorney provided inadequate representation. You have the right to effective assistance of counsel at your trial. If your attorney failed to investigate the case and uncover relevant witnesses, file motions that he or she should have filed, failed to call witnesses favorable to you, failed to object to inadmissible evidence, or failed to give a closing argument, then your attorney may have provided ineffective assistance. Ineffective assistance of counsel can provide the basis for an appeal.
10. Prosecutorial misconduct. The prosecutor is bound by certain rules and ethical concerns in prosecuting the case against you. During the trial, he or she may commit acts of misconduct including the following: refusing to provide you with exculpatory evidence (evidence favorable to your defense) or to provide evidence relating to a plea deal with a witness; making a misstatement of the law; making inflammatory or racially based remarks about you; presenting perjured testimony; eliciting inadmissible testimony; asking expert questions not grounded in the evidence; improperly inflaming the passion of the jury; stating a personal belief in your guilt; vouching for a witness’s credibility; disparaging defense counsel; making reference to facts not in evidence; appealing to jurors’ passions or prejudices; or commenting on your failure to take the stand, your post-arrest silence, or your invocation of the right to counsel. Such misconduct can be the basis of an appeal.
11. The court gave inaccurate jury instructions. The jury instructions are the statements of the law that the judge provides the jurors in your case. These instructions provide the only guidance the jury will have in deliberations to determine whether the prosecutor proved every element of the crime with which you are charged. The way the instructions are worded can mean the difference between a conviction and an acquittal. If the court submits incorrect or misleading instructions to the jury and overrules your attorney’s objections to them, you can appeal a conviction that results.
12. Juror misconduct occurred. Jurors are sworn to decide the case based solely on the evidence and testimony presented in court. They are to be unbiased. They are not to talk to anyone about their decisions until deliberations begin. They are not to conduct their own investigations or tests and may not converse with someone other than other jurors to determine guilt or innocence. If a juror violates the rules that the judge imposes, such misconduct may be the basis of an appeal since it impacts the ultimate outcome of the trial.
13. Insufficient evidence supports the jury’s verdict against you. The state must prove all the elements of the crime with which you are charged beyond a reasonable doubt. If it did not provide enough evidence on an element, and the jury still found you guilty of the crime, then you may appeal the verdict based on the insufficiency of the evidence. This legal sufficiency is not the same as the weight of the evidence, which is up to the jury to decide. There may be only one piece of evidence establishing an essential element of the offense; whether it is sufficient to support the verdict is a legal question and can be appealed. Whether it was enough to convince a juror to find that element established is another question, one that is generally not appealable.

All the above arguments for overturning a conviction on appeal require that the issue be raised first at the trial court level, whether through a pre-trial motion, an objection, or an offer to submit evidence. This is called “preserving” an issue for appeal. Rarely will an appeals court hear an appeal of an issue that the attorney did not preserve.

With all that can go wrong in a criminal trial, errors are bound to occur. An experienced appellate attorney will be able to scrutinize your case and the record to uncover all the issues that were preserved for appeal as well as those that weren’t. Based on this review, your attorney will file the most effective appeal possible.