How do I appeal a Washington criminal conviction?
The criminal justice system is a complicated machine. It takes a lot of people to make it work—police, prosecutors, defense lawyers, and judges.
If any one person makes a mistake, the system can and will break down.
And mistakes do happen. Trial judges misinterpret the law, prosecutors get overzealous, police sometimes violate your rights—unintentionally or intentionally.
When mistakes happen, you have an automatic right to appeal your Washington criminal conviction.
Washington Criminal Appeals Process
The criminal appeals process in Washington can be divided into seven main stages:
Step 1: Notice of Appeal
To start an appeal, you file a written notice of appeal with the trial court. This initial document does two things: (1) officially tells the court that you are going to appeal; and (2) states the specific decision or order that you are appealing.
In Washington, you must file an appeal within 30 days of the date of your final judgment—which is normally the date you were found guilty and sentenced.
(A word about terminology: the “losing” party who files the appeal is called the appellant. The party defending the appeal is called the appellee. If you're appealing your criminal conviction, you are the appellant and the State is the appellee).
Step 2: Prepare the Record on Review
Once you've filed the appeal, you have to prepare the “record on review” for the appeals court. The “record on review” means what happened at trial and consists basically of three things:
(1) exhibits admitted into evidence during trial;
(2) relevant court documents, such as a judge's specific order being appealed (called the “clerk's papers”);
(3) the “report of proceedings,” which is a fancy legal term for everything else. The report of proceedings includes everything that was said at trial. This includes primarily witness testimony and lawyer's arguments, but it also the jury selection process, which consists of back-and-forth questions and answers between lawyers, the judge, and potential jurors.
You typically want to have certain parts of the trial transcribed so the appellate judges know exactly what was said. This verbatim, word-for-word transcription is referred to as (not surprisingly) the “verbatim report of proceedings” (VRP).
If you plan to plan to file a VRP with the appellate court, you have to arrange for the relevant portions to be transcribed within 30 days of filing your notice of appeal. The court reporter or authorized transcriptionist serve will then file the actual VRP with the appellate court within 60 days of the date you arrange for the transcription.
Step 3: The Briefs
Once you've created the trial record and filed it with the appellate court, you start writing your “brief,” which means your written argument in support of your appeal.
Appellant Brief: The appellant files the opening brief within 45 days of the appellate court receiving the trial court record. The brief (which will not really be brief) summarizes the relevant facts of the case, explains the trial court's rulings, identifies the errors made in the trial court, and explains why the court should overturn your conviction because of these errors.
You must also serve a copy of the “report of proceedings” on the government with your opening brief.
Respondent Brief: The State then files a response brief within 30 days of receiving your opening brief. Not surprisingly, the government will argue that the trial court ruled properly, did not commit any legal errors, and ask the appellate court to keep the guilty verdict in place.
Alternatively, if the State does concede that errors occurred, prosecutors will likely argue that these errors were “harmless,” (i.e. not legally significant enough to overturn the jury's verdict).
Reply Brief (optional): After the State files its response brief, you have the option of filing a reply brief within 30 days. You are not allowed to raise new issues in the reply brief, but instead you can respond to the specific arguments raised by the prosecutor.
Step 4: Oral Argument (sometimes)
After reviewing the party's briefs, the Court may schedule oral argument. As the name suggests, oral argument is where the lawyers get to defend their positions in front of the judges and answer questions about their briefs.
In the court of appeals, you will be arguing before a panel, usually three appellate judges. In the superior court, however, a single judge hears your appeal. Whatever the format, the attorneys will have a limited amount of time (15 minutes or less) to make their presentations.
Step 5: Decision
After hearing arguments and reviewing the record, the court will then issue a written decision.
Typically, the court will not rule immediately but will take the case “under advisement” and issue a written ruling later. This may take several weeks but could be several months, especially in the Court of Appeals.
In general, the court will either affirm or reverse your conviction, although these are not the only possible outcomes. The court may, for example, conclude that you received a trial, but that the trial judge sentenced you too harshly, and thus remand the case for re-sentencing only.
Step 6: Motion to reconsider (optional)
If you aren't happy with the court's decision, you can file a motion to reconsider. In this motion, you are arguing that the appellate judges misinterpreted the law or didn't fully consider your arguments. In Washington, you have 20 days to file a motion to reconsider after the court issues its decision.
Unlike the original appeal, the court will decide this motion without oral argument and rely solely on your motion and the State's response.
Step 7: Discretionary Review (optional)
If you lose your appeal (or your motion to reconsider is denied), you may request further appellate review in the next highest court. If you lost in the superior court, for instance, you would seek further appellate review in the Court of Appeals. If you lost in the Court of Appeals, you would seek relief in the Washington Supreme Court.
Unlike your first appeal, the appellate court does not have to hear your second appeal. In other words, the court has the discretion not to accept review. For this reason, in Washington, this second-level appeal is called discretionary review, whereas your first, automatic appeal is called a direct appeal.
Discretionary review is limited in Washington. To accept discretionary review, the appellate judges must believe that the lower court committed an obvious or serious error or that the case involves an issue of significant public interest or involves a significant legal issue.
Note: you are not required to file a motion to reconsider before filing a motion for discretionary review.
What decisions can I appeal?
You can't file an appeal simply because you don't agree with the jury's verdict or a judge's ruling, but you can appeal when judges commit legal errors and attorneys engage in misconduct.
Examples of possible grounds for appeal include the following:
- Insufficient evidence to justify a guilty verdict
- Prosecutorial misconduct
- The trial judge improperly admitted or excluded evidence
- Jury misconduct
- Ineffective assistance of counsel
- Sentencing errors