Constitutional protection of accused persons - Appeal and er...

Learning Outcomes

This article explains how constitutional protections operate for accused persons after conviction and during appellate and collateral review, including:

• When, despite the absence of a general constitutional right to appeal, a criminal defendant has a protected interest in direct appellate review and related equality guarantees
• How due process and equal protection shape access to transcripts, counsel, fee waivers, and other tools necessary for a meaningful first appeal as of right
• How appellate courts classify issues and apply the major standards of review—de novo, clearly erroneous, sufficiency-of-the-evidence, and abuse of discretion—to exam-style fact patterns
• What it means to preserve error at trial, when failure to object results in forfeiture, and how the demanding plain‑error standard operates on unpreserved claims
• The structure and burdens of the harmless error doctrine, distinguishing nonconstitutional from constitutional errors and identifying which violations require automatic reversal as structural defects
• How direct appeal differs from collateral review, with emphasis on the limited, deferential nature of federal habeas corpus and its focus on federal constitutional violations
• The key habeas gatekeeping doctrines—custody, exhaustion of state remedies, and procedural default—and how cause‑and‑prejudice and actual‑innocence showings can overcome otherwise fatal defaults

MBE Syllabus

For the MBE, you are required to understand appellate and post‑conviction protections for criminal defendants, with a focus on the following syllabus points:

• Whether there is a constitutional right to appeal and what equality‑based limits apply
• Standards of review for law, fact, discretion, and unpreserved error
• The harmless error doctrine, including which constitutional violations require automatic reversal
• The difference between direct appeal and collateral review
• Scope and limits of federal habeas corpus, including exhaustion and procedural default

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is true regarding the constitutional right to appeal in criminal cases?
   1. The Constitution guarantees a right to at least one appeal in all criminal cases.
   2. The Constitution does not guarantee a right to appeal, but states may provide one.
   3. Only federal defendants have a constitutional right to appeal.
   4. All criminal appeals must be heard by the U.S. Supreme Court.
2. What is the harmless error doctrine?
   1. Any error at trial requires reversal of the conviction.
   2. Only errors affecting substantial rights require reversal.
   3. Only errors involving federal law require reversal.
   4. All constitutional errors are reversible per se.
3. Which standard of review is used by appellate courts for questions of law?
   1. Clearly erroneous
   2. Abuse of discretion
   3. De novo
   4. Substantial evidence
4. Which of the following is NOT a ground for federal habeas corpus relief after a state conviction?
   1. The state court lacked subject matter jurisdiction.
   2. The defendant was denied effective assistance of counsel.
   3. The defendant disagrees with the sufficiency of the evidence.
   4. The conviction was obtained in violation of the Constitution.

Introduction

Constitutional protection of accused persons does not end with the verdict. After conviction, defendants may seek review of what happened in the trial court, both through direct appeal and through collateral attacks such as federal habeas corpus. The Constitution does not guarantee a right to appeal, but it does impose fairness requirements when a state or the federal system chooses to provide appellate review.

On the MBE, questions in this area test whether you can:

• Distinguish direct appeal from collateral review
• Identify the correct standard of review for a particular issue
• Apply the harmless error and structural error doctrines
• Recognize when federal habeas relief is available after a state conviction

Key Term: Direct Appeal
The first review of a conviction in a higher court, usually taken as a matter of right under state or federal law, focusing on alleged errors in the trial court.

Key Term: Collateral Review
Post‑conviction proceedings that do not continue the original case but instead attack the conviction in a separate action (for example, federal habeas corpus).

The Constitutional Baseline: No Right to Appeal

There is no federal constitutional right to any appeal after a criminal conviction. A state could, in theory, abolish appeals entirely without violating the federal Constitution.

Once a jurisdiction chooses to provide appellate review, however, it must do so in a way that complies with due process and equal protection:

• A state cannot administer appeals in a way that discriminates based on wealth.
• A jurisdiction that provides a first appeal as of right must ensure that indigent defendants have meaningful access to that appeal.

This has several specific consequences for MBE purposes:

• An indigent defendant is entitled to a free transcript or equivalent record when it is needed to present issues on the first appeal as of right.
• An indigent defendant is entitled to appointed counsel on a first appeal as of right.

If the state offers further discretionary review (for example, a petition to a state supreme court), the Constitution does not require appointed counsel for that second‑tier, discretionary appeal. Similarly, there is no right to counsel when petitioning the U.S. Supreme Court for certiorari.

On appeal, there is also no constitutional right to self‑representation. A defendant may represent himself at trial if he knowingly and voluntarily waives counsel and is competent to do so, but there is no corresponding right to personally handle an appeal.

Equality and Fairness on Appeal

The equality principles that apply once an appeal is provided include:

• The state may not condition access to an appeal on payment of fees that indigent defendants cannot afford, if that would effectively deny review.
• If a class of defendants is permitted to appeal, the state cannot single out indigent defendants for disfavored treatment (for example, by providing transcripts only to those who can pay).

Appellate counsel who conclude that an appeal would be frivolous may seek to withdraw, but only under procedures that protect the defendant’s right to counsel. Typically, this involves filing a brief identifying anything in the record that might arguably support the appeal, and having the appellate court independently review the record before allowing withdrawal.

Standards of Review on Appeal

Appellate courts do not simply redo the trial. Instead, they review different kinds of issues under different standards of review.

Key Term: Standard of Review
The level of deference an appellate court gives to a lower court’s decision when evaluating alleged error.

Core standards you must know:

• De novo review (questions of law)

  • Applied to pure questions of law (for example, interpretation of a statute, constitutionality of a statute, jury‑instruction errors on the elements of an offense).
  • The appellate court gives no deference to the trial court’s legal conclusions.

• Clearly erroneous (judge‑found facts)

  • Applied to findings of fact made by a judge (for example, findings after a bench trial or in deciding a suppression motion).
  • The appellate court will not disturb a finding unless left with a “definite and firm conviction” that a mistake has been made.

• Substantial evidence / rational jury standard (jury verdicts)

  • When reviewing sufficiency of the evidence after a jury trial, the question is whether any rational trier of fact could have found guilt beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution.
  • Appellate courts do not reweigh credibility.

• Abuse of discretion (discretionary rulings)

  • Applied to many trial‑management decisions (for example, continuances, severance, certain discovery rulings, many evidentiary rulings, limits on cross‑examination).
  • A decision is reversed only if it was arbitrary, unreasonable, or based on an incorrect legal standard.

In addition to these, appellate courts apply special rules to unpreserved errors.

Preserving Error and Plain Error Review

To obtain review of most trial errors, a party must:

• Make a timely and specific objection when the error occurs, and
• Give the trial court an opportunity to correct the problem.

Failure to object usually means the issue is forfeited. However, appellate courts may correct particularly serious errors under the plain error rule.

Key Term: Plain Error
An obvious error that was not objected to at trial but seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Under plain‑error review:

• The error must be clear or obvious under current law.
• It must affect the defendant’s substantial rights (often meaning it probably affected the outcome).
• Even then, the appellate court has discretion whether to reverse; it will usually do so only to prevent a miscarriage of justice.

MBE questions routinely test whether a defendant has preserved an issue and, if not, whether plain‑error review applies.

Harmless Error Doctrine

Not every error committed in the trial court requires reversal.

Key Term: Harmless Error
An error that occurred at trial but is deemed not to have affected the defendant’s substantial rights or the outcome of the case, so the conviction is affirmed.

Two main categories:

• Nonconstitutional (ordinary) errors

  • For federal practice, an error affecting “substantial rights” generally requires that it had a substantial influence on the verdict. If not, it is harmless.

• Constitutional errors

  • If a federal constitutional right was violated at trial (for example, improper admission of a coerced confession, admission of evidence obtained in violation of the Fourth Amendment, certain Confrontation Clause violations), the conviction must be reversed unless the government proves the error was harmless beyond a reasonable doubt.
  • This is a stricter standard; the government bears the burden.

The key is to distinguish two questions:

1. Was there error? (Did the trial court rule incorrectly?)
2. If so, is reversal required? (Was the error harmless or not?)

Structural Error

Some constitutional errors are so serious that they infect the entire framework of the trial. These are called structural errors.

Key Term: Structural Error
A fundamental constitutional defect that affects the entire conduct of the trial and defies harmless‑error analysis, requiring automatic reversal of the conviction.

Examples likely to appear on the MBE include:

• Total denial of counsel at a critical stage (for example, no lawyer at trial for an indigent defendant)
• A biased judge or judge with a serious financial or personal stake in the outcome
• Unlawful exclusion of jurors on the basis of race (systematic race discrimination in the grand jury or petit jury)
• Denial of the right to a public trial
• Giving a jury instruction that misdescribes the prosecution’s burden of proof (for example, an instruction that allows conviction on less than proof beyond a reasonable doubt)
• Erroneous denial of the defendant’s right to self‑representation at trial

By contrast, many important constitutional violations are not structural and are subject to harmless‑error analysis. For example, the erroneous admission of a coerced confession is serious but is a trial error that can, in theory, be harmless if the government shows beyond a reasonable doubt that the confession did not contribute to the verdict.

Worked Example 1.1

A defendant is convicted in state court and files a direct appeal. The appellate court finds that the trial judge improperly admitted a coerced confession but concludes the other evidence of guilt was overwhelming and affirms the conviction. Is this correct?

Answer:
Yes, if the appellate court correctly applied the constitutional harmless error standard. Admission of a coerced confession is a constitutional trial error, but not a structural error. The conviction may be affirmed if the state proves beyond a reasonable doubt that the error did not contribute to the verdict.

Worked Example 1.2

A state provides an appeal as of right for all criminal defendants. An indigent defendant is denied a transcript and counsel for the appeal. Is this constitutional?

Answer:
No. Once a state provides a first appeal as of right, due process and equal protection require that indigent defendants receive the basic tools needed for a meaningful appeal. That includes a transcript (or equivalent) where necessary and the appointment of counsel for the first appeal as of right.

Collateral Attack and Habeas Corpus

After direct appeal is exhausted or time‑barred, a defendant may seek collateral review, most notably through a petition for habeas corpus.

Key Term: Habeas Corpus
A civil proceeding in which a prisoner asks a court to examine the legality of his detention and, if unconstitutional, to order his release or a new trial.

Key Term: Federal Habeas Corpus
A federal court proceeding in which a state (or federal) prisoner challenges the constitutionality of his custody under 28 U.S.C. § 2254 (state prisoners) or § 2255 (federal prisoners).

Key points for MBE purposes:

• Federal habeas is not a second direct appeal. It is limited in scope and highly deferential to state‑court judgments.
• For state prisoners, federal habeas is available only for violations of the U.S. Constitution, federal laws, or treaties, not for mere errors of state law.
• The petitioner must be “in custody” under the conviction being challenged.

Exhaustion and Procedural Default

Before a state prisoner can obtain federal habeas relief, two major gatekeeping doctrines apply:

Key Term: Procedural Default
A bar to federal habeas review that arises when a prisoner failed to comply with a state procedural rule (for example, failure to raise a claim at the proper time), and the state court clearly relied on that procedural ground to deny relief.

1. Exhaustion of state remedies

   • The petitioner must fairly present the federal constitutional claim to the highest state court able to hear it, using available procedures.
   • Federal habeas relief is generally unavailable until state remedies are exhausted.

2. Procedural default

   • If a state court rejects a claim based on an independent and adequate state procedural ground (for example, untimely filing, failure to object at trial), a federal habeas court will ordinarily not review the claim.
   • Default can be overcome only by showing cause and prejudice (an external reason for the default plus actual harm) or a fundamental miscarriage of justice (for example, actual innocence).

On the merits, under current law a federal habeas court may grant relief only if the state court’s adjudication of the claim:

• Was contrary to, or involved an unreasonable application of, clearly established U.S. Supreme Court precedent; or
• Was based on an unreasonable determination of the facts in light of the evidence presented in the state court.

This high level of deference is frequently tested in principle, even if statutory citations are omitted in MBE questions.

Worked Example 1.3

A state prisoner files a federal habeas petition alleging that the trial judge misapplied a state evidence rule. The conviction is otherwise valid. Should the federal court grant relief?

Answer:
No. Federal habeas corpus is not available to correct mere errors of state law. The petitioner must show that his custody violates the federal Constitution, laws, or treaties. A mistaken application of a state evidence rule, without more, does not suffice.

Worked Example 1.4

A state prisoner failed to object at trial to a jury instruction that improperly shifted the burden of proof on an element of the offense. On direct appeal, the state court held the claim procedurally barred for lack of a trial objection. The prisoner now raises the same issue in federal habeas. How should the federal court treat the claim?

Answer:
The claim is procedurally defaulted because the state court relied on an independent and adequate state procedural ground (failure to object). The federal court may not reach the merits unless the prisoner shows cause for the default and actual prejudice, or that failure to review the claim will result in a fundamental miscarriage of justice (such as convincing evidence of actual innocence).

Worked Example 1.5

A defendant’s lawyer failed to file a notice of appeal within the jurisdiction’s strict deadline, causing the defendant to lose his only appeal as of right. The defendant was indigent and had requested an appeal. Does this violation support post‑conviction relief?

Answer:
Yes. The complete loss of a first appeal as of right due to counsel’s deficient performance amounts to a denial of effective assistance of counsel. The defendant is entitled to relief (typically the right to file an out‑of‑time appeal), without needing to show that the appeal would have succeeded on the merits.

Exam Warning

On the MBE, do not assume every trial error is reversible. You must identify:

• Whether there was error at all
• Whether the error was preserved
• Whether it was constitutional or nonconstitutional
• Whether it was structural (automatic reversal) or subject to harmless‑error analysis

Revision Tip

Remember: the Constitution does not itself guarantee an appeal, but once an appeal is provided, indigent and wealthy defendants must be treated evenhandedly on the first appeal as of right, and the harmless error doctrine means that only certain errors require automatic reversal.

Key Point Checklist

This article has covered the following key knowledge points:

• There is no federal constitutional right to appeal, but due process and equal protection constrain how states administer appeals they create.
• Indigent defendants are entitled to a transcript where necessary and to counsel on the first appeal as of right, but not on discretionary appeals.
• Appellate courts apply different standards of review: de novo for law, clearly erroneous for judge‑found facts, abuse of discretion for many trial‑management rulings, and sufficiency standards for jury verdicts.
• Issues must be preserved by timely and specific objection; unpreserved errors are reviewed, if at all, under the demanding plain‑error standard.
• Under the harmless error doctrine, nonstructural errors require reversal only if they affect substantial rights; constitutional errors are harmless only if harmless beyond a reasonable doubt.
• Structural errors—such as denial of counsel, a biased judge, or denial of a public trial—require automatic reversal and are not subject to harmless‑error review.
• Federal habeas corpus is a limited collateral attack, available only for federal constitutional (or federal law) violations, not mere state‑law errors.
• State prisoners seeking federal habeas relief must exhaust state remedies and overcome any procedural default, and federal courts apply highly deferential review to state‑court decisions.

Key Terms and Concepts

• Direct Appeal
• Collateral Review
• Standard of Review
• Harmless Error
• Structural Error
• Plain Error
• Habeas Corpus
• Federal Habeas Corpus
• Procedural Default