Lessons · Law foundations · what an appeal can do
What an appeal can do and what it cannot
An appeal asks a higher court to find an error in what the lower court did, on the record already made; it is not a second chance to try the facts.
Hone is a place to practise a career, one idea a day. This is one of its lessons, written out in full and free to read without an account.
What it is for
The first question a family asks after a conviction is whether the appeal can call the witness who never testified. Knowing that the record is closed, and that an appeal is about error rather than about the story, is what keeps the office honest in that conversation.
How to think about it
Two questions, in order: was there an error of the kind an appeal court can act on, and is it recorded. An error nobody objected to and nothing captured is often no error at all as far as the record shows.
Worked example
The record: the transcript, the exhibits and the rulings.Fixed when the trial ended. The appeal court reads this and nothing else.
The written brief: what went wrong, where in the record it happened, and why it matters.Every point tied to a page. A point with no page behind it is a point nobody can check.
Argument, then the decision.The court can leave the decision as it is, or set it aside, or order that something be done again correctly.
What it cannot do: hear a witness who did not testify.There is nowhere in the procedure for a new witness to stand.
Your turn
Write the word for what an appeal court does when it sends a case back to the lower court to be done again.
Sending it back to the lower court: the appeal court it
Solve one, graded on the server
The trap
Reading a reversal as an acquittal. Setting a decision aside often means doing it again properly, and a file that tells a client it is over has told them something the order does not say.