EVIDENTIARY ISSUES IN CRIMINAL APPEALS
This research paper discusses the evidentiary issues most commonly used in successful criminal appeals in American state and federal courts. It is dangerous to generalize on this subject because the record of proceedings below and the corresponding grounds for appeal vary from case to case. Also, empirical data as to what works and what does not is very sparse. The available data suggests that the odds against persons convicted of a crime prevailing on appeal are high. Those odds were somewhat reduced by the structural appellate court reforms which took place in the period 1940-1970 and the revolution in criminal procedure sparked by rulings of the Supreme Court under Earl Warren and later. However, more recently the pendulum has swung the other way due to rising crimes rates, hardening of public attitudes toward judges deemed 'soft on crime,' the emergence of a more conservative appellate judiciary and the overloaded dockets of many appellate courts during the past quarter century. Various types of evidentiary errors by the trial judge were a common ground for appeal and a leading but by no means predominant factor in successful outcomes. The harmless error rule is a major reason why erroneous evidentiary rulings have less impact than they otherwise would.
Criminal appeals in state courts date back to colonial times. However, it was not until 1879 that Congress authorized them in federal cases. No federal constitutional right of appeal exists. See Jones v. Barnes, 463 U.S. 745, 751 (1983). In 47 of 50 states criminal convictions are appealable on a non-discretionary basis and all federal criminal convictions are appealable under 28 U.S.C. secs. 1291 and 1294 (Arkin, 1992, February, p. 513). According to Rossman, in the 19th century reversals on appeal in criminal cases were relatively infrequent primarily because they were not seen as necessary to protect individual rights, but only to e...