A person convicted by a judge or jury of a misdemeanor or a felony has a right to appeal that conviction. However, it is not enough to be unhappy with the verdict or think the trial was unfair, there are specific grounds upon which the appeal may be made.

Appeals must be grounded on a legal error made during trial. Common examples include:

  • The prosecution withheld exculpatory evidence.
  • The court admitted evidence that should have been excluded.
  • The court excluded evidence that should have been admitted.
  • The defendant’s constitutional rights were violated at some time during the criminal process from arrest through prosecution.
  • Juror misconduct.
  • The court gave incorrect or confusing instructions to the jury.
  • Sentencing error.
  • Defense counsel failed to effectively represent the defendant.

When the conviction follows a plea of guilty or nolo contendere, the defendant’s appeal rights are limited. Generally, in such cases, the defendant may appeal only on the grounds of “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.” (Penal Code section 1237.5.) Examples of these grounds could include search and seizure violations, an induced plea, denial of effective defense counsel, or an unlawful sentence.

In addition to the grounds for appeal, the appellant must also show prejudice. In other words, if the error giving rise to the appeal had not been made, a different outcome (verdict or sentencing) would have been likely.

Let’s take an example of an appeal to illustrate:

Leon stood trial for the murder of his neighbor. A witness to the murder had identified Leon in a photo line-up and another witness who saw the suspect running away identified a male who approximately matched Leon’s description. There was also testimony that Leon had a beef with this neighbor. Before trial, Leon insisted to his attorney that he was innocent and in fact, that he was on his way to his job at the hour when the murder occurred.  Much to Leon’s dismay, he learned at trial that his attorney never investigated this alibi! The jury convicted Leon on the charge.

As it turns out, if his attorney had properly investigated Leon’s claim, the attorney would have learned that the bus Leon took to work was equipped with a surveillance camera that would have shown him boarding the bus with a time stamp. Furthermore, his work timecard would have shown that he clocked in 30 minutes after the time of the murder.

And indeed, the prosecution had investigated Leon’s workplace and discovered that he clocked in 30 minutes after the murder but never brought that fact to the jury. While the prosecution could have argued that Leon had enough time to murder his neighbor and then high tail it to work, the prosecution’s case would have been considerably weakened by the timecard evidence had it been introduced at trial. And the prosecution’s case would have been severely damaged, if not destroyed, when coupled with the bus surveillance footage.

Leon has excellent grounds for appeal based his attorney’s effective assistance of counsel. He has additional grounds based on the failure of the prosecution to introduce the potentially exculpatory evidence of the timecard of which the prosecution was aware.

Finally, Leon can show prejudice because there is a reasonable probability that the jury would have come to a different verdict had the jurors been informed of this evidence.

While most appeals are not based on such obvious errors, there are often legal errors at trial that could be grounds for appeal.  On the other hand, errors of fact are generally not appealable. For example, if Leon’s attorney did introduce the timecard and bus camera evidence but the jury still convicted Leon  despite this evidence, that would be an issue of fact that is not reviewable by the appellate court.

The appeal process is complex and is often misunderstood and legal errors may be hard to identify to the untrained eye.  If you suspect something just “wasn’t right” about your trial, you should contact a criminal defense attorney to review whether you have an issue for appeal.

Orange County criminal defense attorney William Weinberg treats every case as important and worthy of a robust defense. He is available to review your matter free of charge and will advise you of your options. You may contact him at his Irvine office by calling 949-474-8008 or by emailing him at