There are hundreds, if not thousands, of arguments you or a loved one can possibly make on appeal to overturn a conviction. Success on any one of these arguments may successfully overturn a conviction. These arguments stem from California case law, California statues, and most importantly, the United States Constitution. Attorneys at Barhoma Law, P.C., are aware of these arguments, and more not discussed in this guide, and are ready to review your record for applicability. Call Barhoma Law, P.C., at (213) 855-2956 and schedule a free consultation, or you can contact us here.
Matthew Barhoma, appellate lawyer and founder of Barhoma Law, P.C., outlines the most common arguments to make on appeal below:
1. Ineffective Assistance of Counsel
One of the most common issues is the ineffective assistance of counsel. At Barhoma Law, P.C., we very carefully review your record with an eye for the ineffective assistance of counsel. This is where you or your loved one’s trial attorney’s level of representation was so below the professional standard for an attorney in that position, that his or her conduct was unreasonable. It’s a claim you or your loved one can assert on appeal to show that your defense attorney failed to perform their duties in a reasonably competent manner.
On appeal, if you can prove that you received this unreasonable, below the acceptable competence level standard, you may get your conviction overturned due to the ineffective assistance of counsel. Keep in mind this is not a malpractice proceeding against the trial lawyer. That’s a separate proceeding. But the ineffective assistance of counsel is an argument that addresses the level of professional standard and care administered by your trial lawyer. And if that level falls below the professional standard, you appeal may be ripe to overturn your conviction.
Common examples of the ineffective assistance of counsel is where the trial attorney simply never objected to otherwise improper or objectionable testimony or evidence at trial. More examples include a instances where your trial attorney failed to adequately investigate or prepare the case, neglected to bring certain key motions, or failed to address issues relating to potential prosecutorial misconduct or jury misconduct.
There is a simple, two-prong test that needs to be alleged on appeal:
- That the trial lawyer’s performance was unreasonable under the circumstances; and
- The performance prejudiced the defense.
If you feel like your trial attorney provided inadequate representation, you may be able to seek an appeal for your conviction. Successfully bringing this argument to the court of appeals may overturn you or your loved one’s conviction.
2. Actual Innocence
Actual innocence is an argument that challenges the conviction because you are actually innocent. This appeal issue looks to consider that you did not commit the crimes that you or your loved one were accused of. The underlying principle is that the court of appeals would want to prevent a miscarriage of justice. This can be a very powerful tool, when applicable.
There are multiple ways to bring the Actual Innocence issue. As it is discussed in this guide, you can bring it on a direct appeal, assuming you retained a lawyer early enough and brought the appeal in a timely fashion. If you did not bring it on appeal, you can still seek this argument on a Writ of Habeas Corpus. You can find more information about the Writ of Habeas Corpus on this site. Barhoma Law, P.C., is experienced in bringing Actual Innocence arguments.
3. Insufficient Evidence for a Conviction
In a criminal proceeding, the prosecution must prove their case beyond a reasonable doubt. Ultimately, whether or not they succeeded in that is a question for the jury to consider. However, on appeal, the court of appeals has the opportunity to review the evidence. And if there is insufficient evidence to convict, the appellate court can overturn your conviction.
As discussed on our appeals webpage, to bring about a successful appeal, you must take a careful review of the record (the clerk’s transcript and the reporter’s transcript). And it is that record that contains all the exhibits and the evidence. If the evidence is insufficient, a careful review of the record and an artful approach to the appeal will increase your likelihood of success under an insufficient evidence issue and will maximize your likelihood of success to overturn your or a love one’s conviction.
4. Denial of Jury Trial
Under the Sixth Amendment of the United States Constitution, you have the right to a trial by an impartial jury. Meaning, if you or your loved one requested a jury trial, but for some reason the court denied it or granted an opposition from the prosecution, you have a good appeal issue. Under this issue, there are two things to consider:
- A situation where the judge conducts a bench trial (not a jury trial), where a jury trial was not waived; or
- A situation where the judge indeed has a jury trial, but makes material decisions intended for the jury on his/her own.
Under either fashion, an appeal can be pursued and may be grounds to overturn you or your loved one’s conviction.
5. Defendant was Not Mentally Competent to Stand Trial
You cannot be tried or forced to stand trial when you are not mentally stable. The appellate court will consider and overturn your conviction on this issue if, at the time of trial, there was a mental disability, and you were unable to understand the nature of the criminal proceedings against you. This appeal argument is also possible if were not able to assist your counsel in conducting a defense for your case due to your mental condition.
Under either spin on this issue, the court of appeals can consider and can overturn your conviction for being unable to stand trial.
6. Violation of Speedy Trial Right
The Sixth Amendment of the United States Constitution and Article I, Section 15, of the California Constitution guarantee the right to a speedy trial and the right to receive a jury reasonably quickly following the necessary milestones of your case.
If there was an unreasonable and substantial amount of time between when you were charged, and your trial proceeding, the trial court is supposed to dismiss your case. Failure to discuss the case leads to this being a legitimate issue on appeal and the court of appeals can overturn your conviction. Once again, this is dictated by the records of your case. A careful review of the record will retrace the timeline of events.
7. Judge Incorrectly Joined Case with Co-Defendant
Generally, California law indicates that co-defendants should be tried together. However, a joint trial will commonly prejudice one co-defendant or multiple co-defendants. In that instance, the trial court must sever the trials and try them separately. One co-defendant may have testimony or confession, whereas the other co-defendant may seek an alternate defense or testimony. In that instance, a joint trial would simply prejudice one, if not both, co-defendants.
As such, in an instance where there could have been two co-defendants, but the prosecutor demanded one joint trial, then the court of appeals can overturn your conviction.
8. Statute Resulting in Conviction Abridged First-Amendment Rights
If you are prosecuted pursuant to an unconstitutional statute, the very underlying principle of your conviction cannot stand. Therefore, you can seek an appeal to overturn your conviction. If a criminal law abridges the freedom of speech or of the press, you can challenge it on that basis both in trial and on appeals.
If this is brought up at the trial level, it strengthens your right on appeal that much more.
9. Judge Improperly Closed Courtroom During Trial
You have the right to a speedy trial, but also a public one, and for good reason. If the judge gags the courtroom improperly or mandates that the court be closed for your trial, then you have a right to appeal and potentially overturn that conviction.
This public mandate applies to every stage of your case, including pretrial matters.
10. Unconstitutionally Broad Statute Defining Offense
Most crimes are defined by state statues. However, there is mandate that statutes be clear and not overbroad. If the underlying statute that led to your conviction is too broad, you can file an appeal.
On appeal, the court looks to determine whether the statute was overbroad, so as to fail to give notice of what is deemed legal and illegal behavior.
This happened in a case Matthew Barhoma, founder of Barhoma Law, P.C., worked on and the appellate court overturned the conviction.
11. Speedy Trial Violation of P.C. § 1382
As discussed, you have the constitutional right to a speedy trial. Additionally, the state of California has enacted Section 1382 of its penal code, which also lays out that you have the right to a speedy trial. It defines a speedy trial as a trial within 30 days (for misdemeanors) and 60 days (for felonies).
If the prosecution fails to bring your trial by that deadline, the court must dismiss your case. If the court failed to dismiss your case, you can pursue this as an appeals issue and potentially overturn your conviction.
12. Speedy Trial Violation of the Sixth Amendment of the United States Constitution
Similar to the California’s Constitution mandate on a speedy trial, the United States Constitution depicts a similar mandate. However, the California mandate has a cleaner and better balancing test.
Again, if this right is abridged and the trial court does not appropriately dismiss your case for violation of a speedy trial, then you can pursue this on appeal. The appellate court may be able to overturn your conviction.
13. Defendant Improperly Restrained in Front of Jury
If the jury ever saw you or your loved one in handcuffs, shackles, or other devices that make you look like a “criminal,” the jury is prejudiced and cannot be impartial to you. Even if the jury witnessed you or a loved one in an inmate jumpsuit or getting detained by the court bailiff, you have a clear right to appeal.
If the jury witnesses any of these items, they are more than likely to convict you of a crime, regardless of the evidence because the jury simply thinks you are a criminal. Before the jury ever enters the court room, you or your loved one should appear as a regular civilian. Similarly, only after the jury exits the courtroom, can the bailiff take you or your loved one back into custody.
If there was a violation of this right, then the court of appeals may overturn your conviction. There is a narrow exception to this rule, called manifest necessity. This rule comes into play, for example, if you or your loved one were seen attacking someone in the courtroom and had to be restrained. However, almost always, that is not the case.
14. Jury Witnessed Defendant in Shackles, Hand Cuffs, Jail Clothes, etc.
As discussed above, being perceived as a criminal will only prejudice the jury against you. Therefore, if the jury witnesses you in an inmate suit or jailed-issued clothing, they’re going to assume you are a “criminal” and must have done the crime, beyond the evidence. Hence why this issue sometimes is coupled with the actual innocence and/or insufficient evidence to convict.
In a normal setting, you or your loved one, are usually allowed to change into some type of suit before trial commences or the jury enters the room.
15. Defendant was Excluded from Courtroom for Portions of the Trial
Generally, you or your loved one is allowed to be present during the trial at all times. There is a very minor and narrow exception to this, where the judge may properly exclude the defendant if the defendant is being disorderly and the judge issued a warning against it.
However, this exclusion is rarely permissible. If you were excluded from the courtroom for portions of your trial, the conviction may be overturned on appeal. Once again, a careful review of the transcript is required to make this determination.
16. Judge Communicated to Jury Without Defense Counsel Present
There are procedural safeguards in place to ensure fairness to the legal process. One of those safeguards is that the judge may only communicate with the jury in the presence of your attorney (or you/your loved one, if you are unrepresented). This is intended to ensure fairness and due process of law without any undue influence to the jury. Same goes for the prosecutor. The prosecutor cannot communicate with the jury without you or your lawyer present. If any party (the judge or the prosecutor) fall below this California legal standard, then your conviction can be overturned on appeal.
17. Improper Admission of Confession Following Failure to Give Miranda Warnings
This is a common tactic and a great appeal issue. Before the state can use a conviction against you, they have to ensure that they did not violate your Fifth Amendment rights. That is, you have the right to remain silent and not self incriminate yourself. If you do self incriminate, the authorities must administer your Miranda warnings. The Miranda warnings are in place to advise you that you have the right to remain silent, and anything you say can and will be used against you. If the state uses illegal evidence against you, you can appeal the confession and seek to invalidate the evidence and the overall conviction.
18. Improper Ruling on Motion Related to Sufficiency of Warrant
Pursuant to the Fourth Amendment of the United States Constitution, you have the right to be free from searches and seizures by the State. If the State wishes to search you or your property, it needs to have adequate cause and follow specific procedures. One of those procedures is to get a warrant, which is an authorized document, signed by a judge to administer the search and the innate seizure, if any. There are requirements to obtaining a warrant and for it out. For instance, there is a legal mandate that the warrant be supported by articulable facts of probable cause. The way the warrant is carried out needs to be narrowly tailored as well. As such, if the warrant is to search your house, the authorities cannot use the warrant to search your house and your neighbors house for evidence. Rather, they need to carry out the warrant within its limitations, unless another special exception applies.
If the trial court fails to realize and dismiss an invalid warrant and ill-gotten gains, then you can seek to invalidate the illegally-obtained evidence and overturn your conviction on appeal.
19. Improper Ruling on Motion Related to Identification Procedures
There are various ways to identify the witness in a crime from an eye-witness standpoint. Eye-witness identification is statistically known to be the least credible form of identification. However, there are various procedures mandated in an identification setting. Often, authorities will use unduly suggestive techniques that illicit the eye-witness to point you out. If this procedure is done so in a manner that is unfair or unduly suggestive, the identification cannot be trusted. Additionally, you are allowed to have counsel with you in any in-person identification setting. If these procedural safeguards are not followed, as they commonly are overlooked, they can be a basis for an appeal.
20. Denial of Counsel’s Presence at a Critical Stage of Proceedings
Pursuant to the Sixth Amendment of the United States Constitution, you have a right to counsel. This right to an attorney extends to all critical stages of your proceedings. This includes certain pretrial hearings, trial, and even some post-conviction proceedings. If you were not allowed counsel through any critical stage of your case, your Sixth Amendment right may have been violated and very well could be grounds to overturn your conviction on appeal.
21. Trial Attorney had Conflict of Interest
California lawyers are required to ensure certain ethical bounds. One of the biggest ethical mandates is to owe and maintain the duty of loyalty and the duty of confidentiality to their client. If an attorney falls below that standard, they have committed an ethical violation. However, as it pertains to your case, this may be ground for appeal and overturning of your conviction.
This is often the case in a criminal setting when an attorney represents two co-defendants in a case. It may be impossible to maintain the duty of loyalty (and possibly even the duty of confidentiality), when one of the two co-defendants confuses or points the finger at the other.
If there is a conflict of interest on your case, this is grounds for appeal. On appeal, this may lead to getting you or your loved one’s conviction overturned.
22. Wrongful shifting of the “Burden” that Solely Belongs to the Prosecutor
This is a common and tricky issue. In a criminal proceeding, the burden of proof solely rests on the prosecutor. The burden is to prove their case beyond a reasonable doubt. Often times, intentionally or implicitly, the prosecutor will make statements that confuse the jury that you or your loved one bears the burden of proving your innocence. That is an improper shifting of the burden.
For example, in a homicide trial, the prosecutor may make a statement that tells the jury the defendant must prove he did not kill the victim. When in reality, the prosecutor must prove beyond a reasonable doubt that the defendant indeed committed the crime charged.
A careful review of the records and statements said in court will search for this error. If it exists, it’s grounds for appeal and the appeals court may overturn your conviction.
23. Insufficient or Inaccurate Jury Instructions
In every jury trial, once both sides are done presenting their case, the judge will read a set of instructions to the jury. Once read, the court will even give the jury these instructions in a written format to follow and fill out during jury deliberations. Normally, you can find these jury instructions in the Judicial Council of California’s Criminal Jury Instructions.
However, these instructions are intended to be a guide for courts and attorneys in preparing jury instructions. Meaning, at trial, your lawyer, prosecutor and the judge can make changes to these instructions. Often, the prosecutor may include faulty or inaccurate language, which makes it easier for the jury to convict. More, the judge at trial may not catch the inaccuracy or your attorney may fail to correct it.
As such, if there were inaccurate jury instructions in your case, you may bring the issue on appeal.
24. Improper Exclusion of a Evidence
You have the opportunity to raise doubt about the credibility of the prosecutor’s case. In doing so, you are allowed to introduce every kind of evidence, including witness testimony. If the judge excludes witnesses you propose at trial, you can very well appeal the conviction for an improper exclusion of evidence.
25. Improper Limitation of Cross Examination
The law is clear on this: you have the right to cross-examine every witness the prosecutor uses against you. The United States Supreme Court even affirms this notion by stating that cross examination is the greatest method to obtaining the truth.
The Sixth Amendment of the United States Constitution guarantees the right to cross-examine the prosecutor’s witnesses. If you or a loved one were denied the ability to cross examine a witness without amble cause, you should bring the argument up on appeal.
26. Improper Admission of Defendant’s Statement or Confession
Pursuant to the Fifth Amendment of the United States Constitution, you have the right against self incrimination. Moreover, according to the California Evidence Code, courts must follow certain procedures and take certain precautions before admitting out-of-court statements into evidence.
As such, if there were improper inclusions of self-incrimination evidence, you can seek a reversal on appeal.
27. Denial of Attorney of Choice
As discussed in this guide, you have the right to counsel, pursuant to the Sixth Amendment. This means that you can choose who your attorney is as well. If you cannot afford an attorney, the court can appoint you one. If you can afford your own private attorney, then the court must respect that and allow you to choose your private attorney. An improper denial of that right should be reviewed on appeal. There are very few and narrow instances where this denial is proper.
A solid review of the record will allow a Barhoma Law, P.C., attorney to determine whether this denial was proper and should be advanced on appeal.
28. Improper Denial of Suppression Motion
You have a Fourth Amendment right to be free from illegal searches and seizures. At trial, if that right is violated, through your lawyer, you can file a motion to suppress the evidence of an illegal or invalid search or seizure. A denial of this motion needs to be clearly articulated by the judge. An improper denial of this motion is very appeal worthy and should be pursued.
29. Insufficient Probable Cause
As previously discussed in this guide, the authorities must have probable cause that crime is afoot to be able to search or seize you or your property. They must also be able to articulate what that probable cause is. Furthermore, if the authorities present a warrant, the warrant must be supported by probable cause. These are procedural safeguards intended to protect your right against invalid searches and seizures.
If there was insufficient probable cause in your matter, but you were still convicted, an appeal may be warranted. If there was insufficient probable cause from the start, then every piece of evidence that relates back to the invalid search or seizure is deemed “fruit from the poisonous tree” and may be grounds to overturn your conviction on appeal.
30. Improper Admission of Faulty Line-up Procedure
A line up is an in-person procedure where police officers bring in a number of people and ask a witness to identify the suspect. If the witness identifies you, and you are ultimately tried for the alleged crime, this can be very persuasive to a jury, as juries often hear about the timeliness and manner in which it was done. However, it is all too often that police officers make this process an unduly suggestive process. For instance, the witness may indicate that the suspect was hispanic with grey hair. In conducting the line-up, officers will include only white and African Americans alongside one hispanic individual. This ultimately gets the witness to identify the only hispanic member. If there was an improper or faulty lineup in your matter, it may be grounds to overturn your conviction on appeal.
31. Violation of Defendant’s Fifth Amendment Right Against Self-Incrimination
As previously indicated, pursuant to the Fifth Amendment of the United States constitution, you have a right against self incrimination. This protects you in two substantial ways, among other ways: (1) it protects you from being forced to take the stand in trial; and (2) it protects your from police “interrogation.” What is deemed “interrogation” for purposes of the Fifth Amendment is a long legal analysis. However, for purposes of this guide, if your Fifth Amendment rights were violated, namely in the second ways discussed above, then your appeal may overturn your conviction.
32. Double Jeopardy
Alternatively, the Fifth Amendment has a prohibition against double jeopardy. It is defined as a prohibition against being “twice put in jeopardy of life or limb” for the same conduct. That means that the prosecution cannot attempt to convict you for a crime after a jury previously acquitted you or cannot try to subsequently increase your sentence for trying you a second time. Alternatively, it also has some procedural mandates, such as the charges as they were charged versus what was sought at trial.
If you faced a double jeopardy issue, it is likely that an appeal court will not honor the conviction.
33. Improper Admission of Character Evidence
Generally, in a criminal setting, the prosecution cannot, on its own, introduce negative or bad character evidence about you or a loved one to show that you acted in conformity with that prior bad act. California’s rules of evidence generally prohibit evidence about you to show that you committed the crime at hand. This means that the prosecution cannot ask a witness their opinions about your character. However, inadvertently, this kind of evidence is introduced all the time. And it leads to prejudicing the jury into convicting you. The jury may think, “if the defendant did this prior bad act, they must have committed this crime.”
However, that falls below the standard required to convict and falls below the California Evidence Code. As such, if prior bad acts or bad character evidence were used against you, you may seek an appeal and you may get your conviction overturned.
34. Statute of Limitation & Subsequent Charges
A statute of limitations is a limit on when charges may be brought against you. Oftentimes, prosecutors will investigate you for a crime, but by the time they bring charges, the statute of limitations will have expired. If there is a violation of the statute of limitations, your entire trial should be dismissed. If the prosecutor went over the statute of limitations, but you were convicted nonetheless, you can seek to overturn your conviction by filing an appeal.
35. Improper Denial of Change of Venue Motion
Venue is the location of the courthouse and geographic location of the specific courthouse that hears your matter. Generally, an appropriate venue is in the area where the alleged crime occurred. There are instances where you can change the venue for specific reasons. Often, charges may be brought in the wrong or inappropriate venue, and it can have negative implications on your case. As such, if there was an inappropriate venue in your matter, you may be able to seek an appeal for an inappropriate or improper change in venue.
36. Speedy Trial Violation of P.C. § 1382
The California State Constitution has taken measures to implement the Constitutional guarantee and right to a speedy trial. California has done this by enacting Penal Code Section 1382. Pursuant to that section, the prosecution must commence trial within 30 days for misdemeanors or 60 days for felonies after arraignment. If there is no “good cause” to delay beyond that timeframe, the prosecution cannot institute a trial against you. A delayed trial that leads to a conviction can be appealed and vacated on appeal.
37. Speedy Trial Violation of the Sixth Amendment of the United States Constitution
Just like the right to speedy trial as enacted by the California statue, the United States Constitution guarantees the right to a speedy trial. If you do not have a speedy trial, you may be able to appeal your matter. This would be deemed a violation of your federal and constitutional right. On appeal, you may be able to overturn your conviction.
38. Denial of Counsel’s Presence at a Critical Stage of Proceedings
The Sixth Amendment to the United Statues Constitution affords you and guarantee you the right to counsel. The United States Supreme Court has explained that this constitutional right is extended to “all critical stages of trial.” What is “deemed” a critical stage is a long, elaborate legal theory. But for purposes of this guide, it includes pretrial hearing, some pre-trial procedures, such as line ups as discussed previously, and all hearings at trial. It even includes some hearings post conviction.
If you were denied counsel’s presence at a portion of your trial, you should seek an appeal. On appeal, you may be able to get your matter overturned.
39. Defendant Denied Right of Self Representation
While defending yourself is almost never a good idea, you do have the right to represent yourself in court. The court may be able to deny this self representation, via a finding that you are not competent. However, that is a difficult analysis and leaves the judge open to being reversed on appeal. As such, if you were denied the right to represent yourself, you may be able to seek an appeal and get your conviction overturned or reversed.
40. Defendant was Unduly Prejudiced by Pretrial or Trial Publicity
The core principle of the jury system is for the defendant to be tried by a jury of his peers and not to be adjudicated by a impartial jury. Pretrial publicity taints the jury and disables them from making sound and impartial decisions in your matter. Same goes for trial publicity. If the DA starts to seek media attention in your case, it makes it difficult to find a just and fair jury pool. As such, if you find yourself being prejudiced by pre-trial or trial publicity, you can seek an appeal of your conviction.
41. Prosecutor Challenged a Juror Due to Juror’s Race/Gender, Etc.
Voir Dire is a process before every trial where the judge, the prosecutor, and the defense attorney put together a set group of jury for the case. Each side, the prosecutor and the defense, have something called a “peremptory challenge,” which is a dismissing of a prospective juror without cause. However, the Supreme Court of the United States has held that neither side can dismiss jury members based on race, gender, etc. As such, if that was the case in your jury selection, not only can it be challenged, but a resulting conviction can be appealed and possibly overturned.
42. Prosecutor Committed “Golden Rule” Violation in Argument
It is very highly prejudicial for the prosecutor to ask jury members to put themselves in the shoes of a victim when making a decision about your guilt. This is called the “golden rule.” Due to how prejudicial it is, appeasing this kind of sympathy is appealable conduct. Essentially, the prosecutor would be asking the jury to perform tasks that are beyond making objective findings based on the evidence and the facts in the case. Therefore, if the golden rule was violated in your case, you may be able to seek an appeal and overturn your conviction.
43. Prosecutor Failed to Disclose Exculpatory Evidence
This is a very taboo item and amounts to prosecutorial misconduct. Ethical rules that all American lawyers must abide by specifically instruct prosecutors to disclose exculpatory evidence, which is otherwise negative evidence to their case. As such, no matter how harmful any piece of evidence is to a prosecutor’s case, they are required to share it with the defense. Exculpatory evidence is evidence that may prove your innocence. Failure to disclose exculpatory evidence is appealable conduct. If you are convicted and there was a failure to disclose exculpatory evidence, then you may be able to seek an appeal and overturn your conviction.
44. Prosecutor Failed to Disclose Relevant Information About a Witness
Often, prosecutors will make plea deals for certain witnesses to testify against you in court. Part of the exculpatory evidence that a prosecutor must disclose is the plea deal and other relevant information that they know about the witness, and may be beneficial to your case. Failure to do so may invalidate the evidence and the overall conviction.
Contact a Criminal Appeals Attorney
As discussed numerous times, seeking the advice of a seasoned and experienced appellate attorney is essential in seeking your appeal. There are thousands of potential issues that you can bring on appeal. And it requires the eyes of a trained attorney to review the record and indicate whether you have chances of success on appeal. Call our office for a free consultation regarding you appeal at (213) 855-2956.
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