A reader has asked if a direct appeal can be denied. Unfortunately, the answer is yes. An appeal will be denied whenever the trial record fails to contain evidence of a reversible error. A reversible error is an error made in the trial court which has injuriously affected the appellant or an error which has caused a miscarriage of justice.
A study of case law indicates most direct appeals are, in fact, denied. However, my opinion is also that a defendant is more likely to receive relief during the direct appellate process than in any other post conviction proceeding.
What I see occur most frequently when a defendant wins a direct appeal is that the conviction or sentence is vacated (reversed), and the action is returned to the trial court for a new trial or sentencing hearing. This observation is also contingent upon the type of error which resulted in the appellate relief. To understand what type of issues can and cannot be retried after winning a direct appeal, I encourage you to read my post, why are retrials allowed.
Why an appeal is denied
Why an appeal is denied is simple the presented error either wasn’t actually a legal error, or the professed error failed to impact the trial’s outcome or the sentence imposed.
For most errors to ever be considered on appeal, there usually must be some objection made by counsel to preserve the issue for subsequent appellate review. An objection may have been spontaneous to the evidence or testimony given or an objection may be preserved through a motion in limine if there was a definitive determination on the issue. In most instances, only where a trial objection exists will the appellate court consider whether the presented claim was legal error and harmful to the defendant.
When trial or sentencing errors are presented for appellate consideration, the appellate court usually reviews presented errors under a few different standards:
- a harmless or harmful error,
- a fundamental error,
- a plain error, and
- a structural error.
These error types are discussed below. I will also describe another possible reviewing standard known as cumulative error review. However, this reviewing standard isn’t recognized in all jurisdictions.
What is a harmless error?
Under the harmless error doctrine, the appellate court first looks to see if there was an actual legal error. For instance, assume there was improper hearsay evidence supplied by a witness and the testimony was spontaneously objected to, but counsel was overruled. If the appellate court found the testimony was inadmissible hearsay and no exception existed for its admittance, then there was a legal error. But that doesn’t automatically entitle a defendant to appellate relief.
Next, the court must determine whether the trial error was harmful or harmless to the defendant’s case. A constitutional error is harmless where a reviewing court concludes “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” i.e., “that the jury verdict would have been the same absent the error.” See: Chapman v. California, 87 S.Ct. 824 (1967).
This means if the harm is adequately sufficient to bring a guilty verdict into question, then the error wasn’t harmless. When this happens, the defendant’s case or sentence must be vacated due to the raised issue, and the defendant wins the appeal.
Conversely, if the error had not occurred and the outcome of the case would likely have been the same, then the error was not prejudicial. Therefore, while a legal error occurred, it was harmless. And, the defendant looses the appeal on the presented claim.
The legal definition of a harmless error is an error that is trivial, formal or merely an academic error. A determination, although erroneous, is not prejudicial to the substantial rights of the party who raised it, and in no way affected the outcome of the case.
What is a fundamental error?
Fundamental and plain errors are somewhat similar. Usually, these claimed errors were issues not objected to at the trial court level. On appeal, the appellate attorney requests the court to review the raised error to determine if the error was fundamental in nature. A fundamental error is found when the unpreserved error takes from the defendant a trial right essential to one’s defense.
If the claimed error is found to be fundamental in nature, the defendant will win appellate relief. If the error isn’t fundamental in nature, the defendant will not acquire relief. The best scenario to articulate that an unobjected to error is fundamental in nature is where there exists a prior court determination having already defined the presented error as fundamental in nature.
The legal definition of a fundamental error is an error of the court which goes to the foundation of the case, or which takes from a defendant a right essential to his defense on appeal an error of the court, which in some jurisdictions, will be considered on appeal, notwithstanding the absence of an exception in the lower court or of assignment of the error on appeal.
What is a plain error ?
An appellate court can consider an unpreserved error under the plain error doctrine if a defendant can establish:
- the record clearly establishes what occurred in the trial court,
- a clear and unequivocal rule of law was breached,
- a substantial right of the accused was adversely affected,
- the issue was not waived for tactical reasons, and
- consideration of the error is necessary to do substantial justice.
See: State v. Minor, 546 S.W.3d 59 (Tenn. 2018).
Usually, if a defendant can meet this criteria when presenting an unpreserved trial error on direct appeal, appellate relief will be granted. However, failing to meet one element will result in the denial of relief on the presented appellate claim.
The definition of plain error is an error that is so obvious and prejudicial that an appellate court should address the error despite a party’s failure to raise a proper objection.
What is a structural error?
Structural errors are unlike any other type of error. When an error is structural in nature, the defendant isn’t required to establish he was harmed or prejudiced in any matter. Rather, prejudice is presumed to have occurred.
The difficulty with a structural error is that there are very few errors deemed structural in nature where prejudice is presumed. Some notable structural errors include:
- a complete denial of counsel,
- a biased trial judge,
- racial discrimination in grand jury selection,
- denial of self representation at trial, and
- a defective reasonable doubt instruction.
See: Neder v. United States, 119 S.Ct. 1827 (1999).
The United States Supreme Court has explained that, though structural error is rare, it is the appropriate finding for defects affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. See: Arizona v. Fulminante, 111 S.Ct. 1246 (1991).
Whenever there has been an error determined as structural in nature, the defendant will acquire appellate relief.
What is cumulative error?
I also want to discuss a final form of error review which can be considered on direct appeal known as “cumulative error.” This is a concept wherein multiple, small, harmless errors lead to an ultimate conclusion that the defendant was denied a fair trial. However, not every state or jurisdiction recognizes the cumulative error doctrine.
For instance, Arizona does not recognize the cumulative error doctrine in its entirety. Arizona has a philosophy that several non errors and harmless errors cannot add up to one reversible error but Arizona will consider cumulative error in the context of prosecutorial misconduct. See: State v. Hughes, 969 P.2d 1184 (Ariz. 1998).
Conversely, Tennessee provides that multiple errors committed in a trial proceeding, when each considered in isolation would be harmless, can have a cumulative effect on the proceeding sufficient to warrant reversal. See: State v. Hester, 324 S.W.3d 1 (Tenn. 2010).
Because States and jurisdictions differ in the acceptance or denial of the cumulative error concept, I simply wish to point out its existence for the reader.
My closing thoughts
While every case and appeal will have different events and circumstances, I hope this response somewhat answers my reader’s question as to whether an appeal can be denied. Furthermore, to give some guidance as to how an appellate court classifies presented errors and how those errors merit relief.