May 18, 2015 Articles

Practical and Ethical Considerations in Confessing Error on Appeal

No appeal is worth endangering your professional reputation.

By Sylvia H. Walbolt and Nick A. Brown

A new client calls and hires you to uphold on appeal the splendid order its trial counsel obtained in its favor. You eagerly read the order but quickly realize, to your horror, that the trial judge got it wrong. What should you do?

First and foremost, make absolutely certain that the ruling is indeed erroneous and there is no available opportunity for zealous, but entirely professional, advocacy. The last thing you want is an appellate decision saying you waived a colorable argument by abandoning the ruling as supposed error, whereas the ruling was not in fact erroneous. Moreover, you may have to defend any confession before the appellate court.

Particularly in the criminal context, “a confession [of error] does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.” Young v. United States, 315 U.S. 257, 258–59 (1942). Nor is a court bound by a stipulation on a question of law. E.g., Koch v. U.S. Dep’t of Interior, 47 F.3d 1015, 1018 (10th Cir. 1995).

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