If you’ve been convicted of a crime, you’re probably going to file an appeal. Unless you pleaded guilty, it is common to file an appeal in criminal cases. What arguments you can make in a criminal appeal depends on the specifics of your case. But there are a few that are common in most cases.

What arguments can you make on appeal in a criminal case?

The arguments you can make on appeal in a criminal case depend on your circumstances. How to Justice provides some of the common examples below. But it’s possible that none, all or a combination of these might apply in your case. And it’s possible that you have arguments that are better than these in your case, too. A good appeals lawyer can help you understand what arguments will work best on appeal.

Ineffective Assistance of Counsel

The most common appeals argument focuses on ineffective assistance of counsel. The concept of ineffective assistance of counsel seems simple but also becomes complex. An ineffective assistance appeal claims that your lawyer did something wrong. This argument relies on your Sixth Amendment right to counsel. If your lawyer did something wrong, you can argue that you lost your Sixth Amendment right.

The U.S. Supreme Court has adopted a two-part test for ineffective assistance. First, you must show that your lawyer’s performance was unreasonable. This means that the performance fell below an average standard. Second, you must show that the performance affected the outcome of the case. This is a “but for” test. But for the poor performance by your attorney, the jury wouldn’t have convicted you.

Winning an ineffective assistance argument is hard. Even if you can prove your lawyer made unacceptable mistakes, you still have to meet the “but for” test. In most cases, this means you have to prove the jury would have found you not guilty but for your attorney. That is a hard standard to meet.

Prosecutorial Misconduct

Another common appeals argument focuses on prosecutorial misconduct. The term prosecutorial misconduct refers to wrongdoing by a prosecutor. If prosecutors do something unethical or illegal, it could be prosecutorial misconduct. Prosecutorial misconduct could also occur if a prosecutor does not do something they’re supposed to do.

Prosecutorial misconduct can look different in every case. But there are a few common examples:

• failing to turn over evidence of your innocence,
• making improper statements to the jury or media,
• tampering with evidence,
• pressuring a defendant to plead guilty with false evidence, and
• asking questions during trial without a basis to do so.

If prosecutors engage in misconduct, it can lead to a reversal on appeal. But, like with ineffective assistance, you often have to meet the “but for” test here, too. Again, that can be hard to do.

Other Constitutional Rights Violations

There are many more examples that might apply in your case as well. Did the court admit improper character or hearsay evidence? Was DNA evidence unreliable? Or did the prosecutor strike jurors based on race or ethnicity? These are all questions that a good appeals lawyer will ask. And they are questions you should ask in your case, too.

The Takeaway:

Ineffective assistance and prosecutorial misconduct are two common arguments to make on appeal. But they are not the only ones—far from it. If a jury or judge convicts you of a crime, you have the right to appeal. And you want to make the best argument or arguments for your case. A good appeals lawyer can help you understand what argument or arguments might work.