Why You Need an Appellate Lawyer on Your Trial Team

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Why You Need an Appellate Lawyer on Your Trial Team

Why would you want an appellate lawyer on your trial team?

If you’ve followed any high-profile criminal trials in the media in recent years, you may have noticed that the defendant doesn’t just have one criminal defense attorney standing by them in the courtroom. When the defendant can afford it, there is a team of attorneys that the defendant or their lead counsel has chosen to help with their defense.

Apart from the trial lawyer whose task is to bring together all the evidence and persuade the fact-finders (judge or jury) that you are innocent of the charges, the most critical role is played by the appellate lawyer on your trial team.

What does the appellate lawyer do in a criminal trial and why would you need one before you are convicted?

How an Appellate Lawyer on Your Trial Team Can Help Win Your Case

An appellate lawyer on your trial team can help win your case at trial. But, more importantly, if things go south, the appellate lawyer on your trial team is there to maximize your chances of a successful appeal.

No one wants to win their case two years after they’ve been convicted and sentenced to prison, but, if you find yourself in prison two years after your trial, you may be glad that there was an attorney at your trial whose sole job was to ensure that all issues were preserved during your trial…

Even the best trial lawyers will miss potential appellate issues in the heat of trial. And the best trial lawyer should be free to do what they do best – try your case to the jury. The appellate lawyer on your trial team remains “in the background,” watching, researching issues as they arise, and advising your trial attorney on evidentiary and preservation issues throughout the trial.

Jury Selection

Jury selection is one area of trial practice that is often the subject of appeals. What happens when your prosecutor systematically excludes black jurors from your trial? Your trial lawyer must preserve the issue for appeal with what is called a Batson motion.

In the Batson hearing, your attorney must demonstrate that 1) the prosecutor excluded black (or female, or another “protected class”) jurors; 2) that they did not have a facially neutral reason (non-racial) for excluding them; and 3) if there is a facially neutral reason, that it was a pretext because the prosecutor allowed white jurors on the jury under the same circumstances (i.e. if the prosecutor says they excluded a black juror because he is unemployed, your attorney must show that the prosecutor allowed a white juror who was also unemployed).

If Batson issues or other potential appeal issues during jury selection are not properly preserved, the appellate courts will not consider them on appeal.

Motions in Limine

Another way to preserve issues for appeal is by filing “motions in limine,” or pretrial motions to exclude certain evidence or testimony.

The appellate attorney on your trial team can 1) consult with your trial attorney about how your pretrial motions are “framed,” considering how the appellate courts have treated similar issues in past opinions. As your trial attorney is focusing on how to present your motions in limine in a way that is most likely to persuade the trial judge, your appellate attorney can focus on how to frame your motions in a way that is most likely to win on appeal if the motion is denied by the trial judge.

When the trial judge denies a motion in limine, your trial attorney must still “contemporaneously object” to the evidence we want to exclude – if your attorney does not object as the evidence is being introduced at trial, the issue is not preserved for appeal.

On the other hand, when the court grants your motion in limine, your attorney must contemporaneously object to any mention of the excluded evidence by the prosecutor or the government’s witnesses. Your appellate attorney can watch, listen, and help to ensure that your trial attorney does not miss these critical moments as events are unfolding quickly during your trial.

Admissibility of Evidence

The appellate lawyer on your trial can also help your trial lawyer by researching and advising on the admissibility of evidence during your trial. When a government witness is testifying and an unexpected piece of evidence comes up, your trial lawyer can’t walk away, take a break, and research whether the evidence is admissible and how the appellate courts would treat the issue.

It can be critical to have an attorney on hand who focuses solely on the admissibility of the evidence, how to exclude it, and how to frame the issue for an appeal if the judge allows the evidence to come in.

Jury Instructions

Trials can be won or lost based on the instructions that the judge gives to the jurors at the end of your trial. Key phrases taken from appellate opinions can give your trial lawyer a “legal hook” to argue to jurors, and the language that is included in jury instructions is often a flashpoint during trial.

Jury instructions can also win or lose an appeal. If the court denies a jury instruction that the appellate courts have said is mandatory in certain cases, it can result in a conviction being overturned and a new trial. But your trial attorney must know what jury instructions you are entitled to, often based on unexpected issues that arose during trial and that your trial attorney has minimal time to research before the charging conference.

The appellate lawyer on your trial team can help your trial lawyer to ensure that critical jury instructions are requested and, if the Court denies them, your appellate attorney can help to ensure that the issue is preserved for a possible appeal.

Sentencing

Not every appeal is based on guilt or innocence. Especially in the federal court, sentencing is a complex process based on the federal sentencing guidelines and federal statutes. If the Court imposes sentencing enhancements or makes an error regarding your offense level, criminal history category, or status as a career offender, those issues must be briefed, argued, and preserved for appeal.

Preservation of Error

The common thread through everything I’ve written above is the preservation of error for any possible appeals. If your attorney does not raise an issue, the appellate courts will not consider it. If your attorney raises the issue but does not follow the rules for preservation of error, the appellate courts will not consider it.

An Appellate Lawyer on Your Trial Team is Like an Insurance Policy

It’s not easy to consider the possibility that you may be convicted by a jury and sent to prison for years or decades of your life. But, if you are going to trial, you must consider that possibility.

Especially in federal court, acquittals are not the norm. Most federal defendants are convicted. Once a person has been convicted, it may be an uphill battle persuading an appellate court to grant a new trial or to change the sentence that was given.

If you find yourself fighting your charges from a prison cell instead of from the defense table in the courtroom, you will be grateful that an appellate lawyer was there at trial helping to frame the issues and maximize your chances of a successful appeal.

For Attorneys

If your client is considering going to trial and the resources are available, talk to your client asap about getting an appellate lawyer on board for the limited purposes of researching, advising, and ensuring that all issues are preserved for appeal.

Call me or send an email if you have questions or want to discuss the potential issues in your case.

For Defendants

If you intend to take your case to trial, talk to your defense lawyer about how an appellate lawyer on your trial team can help to win your case, both at trial and on appeal. Have your attorney contact me to discuss whether an appellate lawyer would be a valuable addition to your trial team.

Federal Criminal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.

Why would you want an appellate lawyer on your trial team?

If you’ve followed any high-profile criminal trials in the media in recent years, you may have noticed that the defendant doesn’t just have one criminal defense attorney standing by them in the courtroom. When the defendant can afford it, there is a team of attorneys that the defendant or their lead counsel has chosen to help with their defense.

Apart from the trial lawyer whose task is to bring together all the evidence and persuade the fact-finders (judge or jury) that you are innocent of the charges, the most critical role is played by the appellate lawyer on your trial team.

What does the appellate lawyer do in a criminal trial and why would you need one before you are convicted?

How an Appellate Lawyer on Your Trial Team Can Help Win Your Case

An appellate lawyer on your trial team can help win your case at trial. But, more importantly, if things go south, the appellate lawyer on your trial team is there to maximize your chances of a successful appeal.

No one wants to win their case two years after they’ve been convicted and sentenced to prison, but, if you find yourself in prison two years after your trial, you may be glad that there was an attorney at your trial whose sole job was to ensure that all issues were preserved during your trial…

Even the best trial lawyers will miss potential appellate issues in the heat of trial. And the best trial lawyer should be free to do what they do best – try your case to the jury. The appellate lawyer on your trial team remains “in the background,” watching, researching issues as they arise, and advising your trial attorney on evidentiary and preservation issues throughout the trial.

Jury Selection

Jury selection is one area of trial practice that is often the subject of appeals. What happens when your prosecutor systematically excludes black jurors from your trial? Your trial lawyer must preserve the issue for appeal with what is called a Batson motion.

In the Batson hearing, your attorney must demonstrate that 1) the prosecutor excluded black (or female, or another “protected class”) jurors; 2) that they did not have a facially neutral reason (non-racial) for excluding them; and 3) if there is a facially neutral reason, that it was a pretext because the prosecutor allowed white jurors on the jury under the same circumstances (i.e. if the prosecutor says they excluded a black juror because he is unemployed, your attorney must show that the prosecutor allowed a white juror who was also unemployed).

If Batson issues or other potential appeal issues during jury selection are not properly preserved, the appellate courts will not consider them on appeal.

Motions in Limine

Another way to preserve issues for appeal is by filing “motions in limine,” or pretrial motions to exclude certain evidence or testimony.

The appellate attorney on your trial team can 1) consult with your trial attorney about how your pretrial motions are “framed,” considering how the appellate courts have treated similar issues in past opinions. As your trial attorney is focusing on how to present your motions in limine in a way that is most likely to persuade the trial judge, your appellate attorney can focus on how to frame your motions in a way that is most likely to win on appeal if the motion is denied by the trial judge.

When the trial judge denies a motion in limine, your trial attorney must still “contemporaneously object” to the evidence we want to exclude – if your attorney does not object as the evidence is being introduced at trial, the issue is not preserved for appeal.

On the other hand, when the court grants your motion in limine, your attorney must contemporaneously object to any mention of the excluded evidence by the prosecutor or the government’s witnesses. Your appellate attorney can watch, listen, and help to ensure that your trial attorney does not miss these critical moments as events are unfolding quickly during your trial.

Admissibility of Evidence

The appellate lawyer on your trial can also help your trial lawyer by researching and advising on the admissibility of evidence during your trial. When a government witness is testifying and an unexpected piece of evidence comes up, your trial lawyer can’t walk away, take a break, and research whether the evidence is admissible and how the appellate courts would treat the issue.

It can be critical to have an attorney on hand who focuses solely on the admissibility of the evidence, how to exclude it, and how to frame the issue for an appeal if the judge allows the evidence to come in.

Jury Instructions

Trials can be won or lost based on the instructions that the judge gives to the jurors at the end of your trial. Key phrases taken from appellate opinions can give your trial lawyer a “legal hook” to argue to jurors, and the language that is included in jury instructions is often a flashpoint during trial.

Jury instructions can also win or lose an appeal. If the court denies a jury instruction that the appellate courts have said is mandatory in certain cases, it can result in a conviction being overturned and a new trial. But your trial attorney must know what jury instructions you are entitled to, often based on unexpected issues that arose during trial and that your trial attorney has minimal time to research before the charging conference.

The appellate lawyer on your trial team can help your trial lawyer to ensure that critical jury instructions are requested and, if the Court denies them, your appellate attorney can help to ensure that the issue is preserved for a possible appeal.

Sentencing

Not every appeal is based on guilt or innocence. Especially in the federal court, sentencing is a complex process based on the federal sentencing guidelines and federal statutes. If the Court imposes sentencing enhancements or makes an error regarding your offense level, criminal history category, or status as a career offender, those issues must be briefed, argued, and preserved for appeal.

Preservation of Error

The common thread through everything I’ve written above is the preservation of error for any possible appeals. If your attorney does not raise an issue, the appellate courts will not consider it. If your attorney raises the issue but does not follow the rules for preservation of error, the appellate courts will not consider it.

An Appellate Lawyer on Your Trial Team is Like an Insurance Policy

It’s not easy to consider the possibility that you may be convicted by a jury and sent to prison for years or decades of your life. But, if you are going to trial, you must consider that possibility.

Especially in federal court, acquittals are not the norm. Most federal defendants are convicted. Once a person has been convicted, it may be an uphill battle persuading an appellate court to grant a new trial or to change the sentence that was given.

If you find yourself fighting your charges from a prison cell instead of from the defense table in the courtroom, you will be grateful that an appellate lawyer was there at trial helping to frame the issues and maximize your chances of a successful appeal.

For Attorneys

If your client is considering going to trial and the resources are available, talk to your client asap about getting an appellate lawyer on board for the limited purposes of researching, advising, and ensuring that all issues are preserved for appeal.

Call me or send an email if you have questions or want to discuss the potential issues in your case.

For Defendants

If you intend to take your case to trial, talk to your defense lawyer about how an appellate lawyer on your trial team can help to win your case, both at trial and on appeal. Have your attorney contact me to discuss whether an appellate lawyer would be a valuable addition to your trial team.

Federal Criminal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.

federal criminal appeals lawyer in columbia sc
Federal Appeals Lawyer
State and Federal Criminal Appeals Attorney in Columbia, SC
Contact Elizabeth

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