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Criminal Justice Standards

Criminal Appeals

The following is the complete "black letter" standards, which were approved by the American Bar Association's House of Delegates in August 1978. The standards are published along with commentary as Chapter 21 in ABA Standards for Criminal Justice, Second Edition,© 1980 by the American Bar Association. A 1986 supplement contains updated commentary. 

Copyright by the American Bar Association. This work (Criminal Justice Standards) may be used for non-profit educational and training purposes and legal reform (legislative, judicial, and executive) without written permission but with a citation to this source.  Some specific Standards can be purchased in book format.


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Standard 21-1.1. The defendant's right to appeal from conviction in a criminal case

(a) The possibility of appellate review of trial court judgments should exist for every criminal conviction. It is undesirable to have any class of case in which such trial court determinations are unreviewable.

(b) An appeal is not a necessary and integral part of every conviction. Ordinarily a decision to take an appeal is made by the defendant.

Standard 21-1.2. Purposes of criminal appeals; appellate court structure

(a) The purposes of the first level of appeal in criminal cases are:

(i) to protect defendants against prejudicial legal error in the proceedings leading to conviction and against verdicts unsupported by sufficient evidence;

(ii) authoritatively to develop and refine the substantive and procedural doctrines of criminal law; and

(iii) to foster and maintain uniform, consistent standards and practices in criminal process.

(b) In a three-tiered court system, the principal purposes of a second level of review in criminal cases are the articulation and development of legal doctrines and the assurance of uniform administration of the law by lower trial and appellate courts. The jurisdiction of the highest court should generally be discretionary with the court.

(c) The structure of appellate courts should be consonant with the purposes of appellate review. It is undesirable to have specialized appellate courts such that a court, or a division of a court, is assigned appeals in criminal cases as its basic or exclusive task.

Standard 21-1.3. Limitations on defendants' appeals; final judgments and interlocutory appeals

(a) A defendant should have the right to appeal from any final judgment of a trial court adverse to the defendant, including:

(i) a conviction followed by a sentence of probation;

(ii) a conviction followed by a sentence suspended as to imposition or execution; or

(iii) a conviction based upon a plea of guilty or nolo contendere.

(b) In general, a defendant should not be permitted to take an appeal until a final judgment adverse to the defendant has been entered in the trial court. Interlocutory review, in the discretion of the appellate court, should be available:

(i) to review trial court decisions denying claims of procedural rights that cannot be vindicated by appeals from final judgments. Included among such claimed rights are double jeopardy and bail pending trial;

(ii) to review trial court decisions denying claims of procedural rights that concern the competence of the trial court. Included among such claimed rights are lack of jurisdiction, improper place of trial, and vitiating flaws in the selection process for the petit jury or the grand jury; and

(iii) to review trial court decisions on issues certified by the trial courts for this purpose.

All interlocutory appeals should be permitted only by leave of the appellate court.

(c) Where the only contested issues in a prosecution can be raised and determined by decisions on pretrial motions, such as motions to suppress evidence, motions to exclude confessions, and motions challenging the sufficiency of the charging papers to state an offense, a procedure should be established to permit entry of a final judgment of conviction, on the basis of a guilty plea or a stipulation of the facts necessary for conviction, without foreclosing subsequent appeals on the contested issues.

(d) A defendant should be permitted to seek appellate review of an order granting a new trial, where the defendant claims that the proper trial court disposition should have been a final judgment in favor of the defendant.

(e) A defendant should be allowed to appeal from an order, not on his or her motion, finding defendant incompetent to stand trial.

(f) A defendant should be allowed to appeal from an order revoking probation on matters concerning the revocation decision.

Standard 21-1.4. Prosecution appeals

(a) The prosecution should be permitted to appeal in the following situations:

(i) from an order dismissing an indictment or information on substantive grounds, such as the unconstitutionality of the statute under which the charge was brought or the failure of the charging instrument to state an offense under the statute, provided that the order is not made after the defendant has been put in jeopardy and before the verdict or finding on the charging instrument;

(ii) from an order that terminates the prosecution on other grounds, such as an order upholding the defense of double jeopardy, autrefois convict, autrefois acquit, or denial of speedy trial, provided that the order is not made after the defendant has been put in jeopardy and before the verdict or finding on the charging instrument; and

(iii) from pretrial orders granting motions to suppress evidence or to have confessions declared inadmissible or to grant other relief where the effect is to seriously impede, although not to completely foreclose, continuation of the prosecution.

Such trial court decisions are likely to rest upon principles important to the administration of criminal justice that ought to be applied uniformly throughout the state.

(b) Where more than one level of appellate review exists, whenever an intermediate court has held in favor of a defendant-appellant, the prosecution should be permitted to seek further review in the highest court.

(c) Pending an appeal at the instance of the prosecution, special provision should be made as to the custody of the defendant. Where the trial court has dismissed the indictment on substantive grounds or the court has otherwise upheld a motion that terminates the prosecution, the defendant should be released on nominal bail or his or her recognizance until final decision on the appeal. In other cases, defendant should not be denied liberty pending determination of a prosecution appeal unless there is cogent evidence that the defendant will not abide by the judgment of the appellate court.


Standard 21-2.1. The notice of appeal

(a) A definite time period after final judgment in the trial court, such as twenty-eight days, should be specified as the time during which appeals must be instituted. The purpose of this limitation is to facilitate the orderly transition of the business of the courts. Therefore, the appellate court should have power to entertain appeals taken after the prescribed time if the delay is found to be excusable.

(b) A trial court, upon imposing sentence or disposing of posttrial motions, should inform a defendant of the right to appeal, that the right must be exercised within a specified time, and that defendant should promptly consult with defense counsel in that regard.

Standard 21-2.2. Trial counsel's duties with regard to appeal

(a) Counsel, whether retained or appointed to represent a defendant during trial court proceedings, should continue to represent a sentenced defendant until a decision has been made whether to appeal and, if an appeal is instituted, to serve the defendant at least until new counsel is substituted, unless the appellate court permits counsel to withdraw at an earlier time.

(b) Defense counsel should advise a defendant on the meaning of the court's judgment, of defendant's right to appeal, on the possible grounds for appeal, and of the probable outcome of appealing. Counsel should also advise of any posttrial proceedings that might be pursued before or concurrent with an appeal. While counsel should do what is needed to inform and advise defendant, the decision whether to appeal, like the decision whether to plead guilty, must be the defendant's own choice.

(c) While a prosecution is proceeding, and particularly after determination of guilt in a contested proceeding, defense counsel should review the case and evaluate the prospects for appeal. Defense counsel should consider the possibility of negotiating with the prosecutor for a reduction in the grade of offense or mitigation of the severity of sentence in exchange for a plea of guilty. The reason for the change of plea should be disclosed to the court in the same manner as in guilty pleas made before trial begins.

Standard 21-2.3. Unacceptable inducements and deterrents to taking appeals

(a) Administration of a system of elective appeals presupposes that the parties with the right to appeal will choose to do so only when they, with advice of counsel, have identified grounds on which substantial argument can be made for favorable action by the appellate court. The system should not contain factors that induce or deter appeals for other reasons.

(b) Examples of unacceptable inducements for defendants to appeal are:

(i) absence of any risk that a financial obligation may be imposed on an appellant who pursues a frivolous appeal;

(ii) automatic release from custody, on bail or recognizance, following a sentence to a term of confinement; and

(iii) automatic detention of the appellant who is confined pending appeal in a facility substantially different in quality and regimen from those in which inmates serving sentences are normally held.

(c) Examples of unacceptable deterrents to defendants' appeals are:

(i) denial of necessary legal assistance and related services at public expense to appellants who cannot afford adequate legal representation;

(ii) denial of recovery of the costs of appeal to successful appellants who have not proceeded in forma pauperis;

(iii) the prospect, if the appeal succeeds, of reprosecution leading to a more severe sentence for the same offense unless based upon events subsequent to the original sentencing proceeding that justify the increase; and

(iv) the prospect, if the appeal succeeds, of reprosecution leading to conviction of a more serious offense.

Standard 21-2.4. Procedural devices intended to eliminate frivolous appeals before determination of their merits

At the first level of appeal, procedures intended to eliminate frivolous cases from appellate court dockets without decisions on the merits are impractical and unsound.

(a) Requirement of a trial court's certificate as a condition of appellate review is inconsistent with the principle of the right to appeal. If the decisions to refuse a certificate are not final but can be reviewed by the appellate courts, transition of cases to the appellate courts is made unnecessarily complex and the burden on the appellate courts is increased.

(b) Reviewing all imminent appeals by appellate courts, for example, by a requirement of leave of the court to appeal at the first level of review, adds a useless step to the overwhelming majority of appeals at a considerable burden to the courts.

Standard 21-2.5. Release pending appeal; stay of execution

(a) When an appeal has been instituted by a convicted defendant after a sentence of imprisonment has been imposed, the question of the appellant's custody pending final decision on appeal should be reviewed and a fresh determination made by the trial court. The burden of seeking a stay of execution and release may properly be placed on the appellant. The decision of the trial court should be subject to redetermination by an appellate judge or court on the initiative of either the prosecution or the defense.

(b) Release should not be granted if the court finds that there is substantial risk that the appellant will not appear to answer the judgment following conclusion of the appellate proceedings, or that the appellant is likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice. In deciding whether to release a convicted defendant pending appeal, the trial court should also take into account the nature of the crime and the length of sentence imposed, together with factors relevant to pretrial release.

(c) Execution of a death sentence should be stayed automatically when an appeal is instituted.

(d) Dilatory prosecution of an appeal through acts or omissions of appellant or appellant's counsel should be ground for termination of the release of appellant pending appeal.

(e) In a jurisdiction with an intermediate appellate court, when review in the highest court is sought by a defendant-appellant, the question of custody pending action by the highest court may be redetermined by the intermediate appellate court or a judge thereof. When review is sought by the prosecution, standards relevant to custody of defendants pending prosecution appeal from trial court decisions should be applied. Decisions concerning custody by the intermediate appellate court or judge thereof should be subject to review by the highest court.


Standard 21-3.1. Supervision during the preparation of cases

(a) Continuing, authoritative supervision of criminal cases on appeal, from docketing through submission for decision, should be exercised by the appellate court. While this function should always be the ultimate responsibility of the judges of the appellate court, they may properly delegate performance of prescribed tasks to administrative staff, subject to oversight by the court as needed.

(b) The primary purposes of supervision are:

(i) to monitor the activities of the clerks in trial courts, court reporters, and counsel for the parties to the end that records and briefs be prepared with dispatch and without undue cost;

(ii) to focus for prompt resolution any preliminary issues that require decision while an appeal is pending, such as questions arising in the preparation and filing of the record of the proceedings below, orders for the appointment or withdrawal of counsel, and matters concerning stays of execution and release of appellants or appellees from custody; and

(iii) to select, among diverse procedural paths for hearing and submission of cases to the appellate court and for disposition of cases by the court, the path that is most appropriate for each case.

Standard 21-3.2. Counsel on appeal

(a) At the first level of appeal, every convicted defendant, appellant or appellee, should have assistance of counsel. For persons without means to obtain adequate legal representation, counsel should be assigned unless the right to counsel is explicitly waived. Assigned counsel should be compensated from public funds.

(b) Counsel for a defendant-appellant should not seek to withdraw from a case because of counsel's determination that the appeal lacks merit.

(i) Appellate counsel should give a client his or her best professional evaluation of the questions that might be presented on appeal. Counsel, when inquiring into the case, should consider all issues that might affect the validity of the judgment of conviction and sentence, including any that might require initial presentation in a postconviction proceeding. Counsel should advise on the probable outcome of a challenge to the conviction or sentence. Counsel should endeavor to persuade the client to abandon a wholly frivolous appeal or to eliminate contentions lacking in substance.

(ii) If the client chooses to proceed with an appeal against the advice of counsel, counsel should present the case, so long as such advocacy does not involve deception of the court. When counsel cannot continue without misleading the court, counsel may request permission to withdraw.

(c) Unexplained general requests from appellants for dismissal of their assigned counsel should not be granted.

(d) In a jurisdiction with an intermediate appellate court, counsel for a defendant-appellant or a defendant-appellee should continue to represent the client if the prosecution seeks review in the highest court, unless new counsel is substituted or unless the highest court permits counsel to withdraw. Similarly, in any jurisdiction, such appellate counsel should continue to represent the client if the prosecution seeks review in the Supreme Court of the United States.

Standard 21-3.3. The record on appeal

(a) Continuing efforts should be exerted to improve techniques for the preparation of records for appeals. Methods should be adopted that minimize the time necessary for preparation of the transcript of trial court proceedings. The traditional requirement of a printed record should be abandoned. New technological processes for the preparation of records should be adopted as soon as they permit more rapid and efficient performance.

(b) Counsel for the parties should specify those portions of the trial court proceedings to be included in the record for purposes of appeal. When defendant-appellants are proceeding in forma pauperis, transcripts of the trial court proceedings and other elements of the record on appeal should be supplied at public expense.

Standard 21-3.4. Expediting handling of appeals

(a) Appellate courts should develop and employ techniques for expediting the handling of appeals. Appellate procedures can be simplified and abbreviated so long as they continue to ensure:

(i) that the judges are adequately informed as to the facts and the proceedings below;

(ii) that the judges understand the contentions of the parties;

(iii) that each judge considers to a reasoned conclusion the law and the facts in every case;

(iv) that decisions of the court are reached collegially; and

(v) that the reasons for the decisions of the court are announced.

Since a variety of procedures can meet these requisites, it is inefficient to process all cases in a uniform way. Appellate courts should establish diverse procedures so that appropriate judicial processing can be followed in each case.

(b) Mindful that the basic purpose of greater expedition is preservation of the quality of appellate justice, appellate courts should establish firm goals of the time for complete processing of appeals through the alternative routes to final decisions. Time schedules for each step in the process should be announced to the profession, continuously monitored, and rigorously enforced.

(c) A central staff of attorneys can provide significant assistance to an appellate court in effective caseflow management, particularly when a system of flexible or differentiated procedures has been instituted. The principal functions of a central staff are to assist the appellate court:

(i) by evaluating new appeals and recommending to the court the procedural path appropriate to each;

(ii) by monitoring the progress of appeals through the prescribed steps toward final decision;

(iii) by preparing for the court research memoranda on factual and legal issues in pending appeals; and

(iv) by drafting for the court possible memorandum opinions for cases that may conclude without a full opinion of the court.

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