Bush Ross Trial and Appellate Practice Group Tampa, Florida

This information is a public service of the Trial and Appellate Practice Group serving the greater Tampa Bay area, including St. Petersburg, Largo, Clearwater, Sarasota, Bradenton and much of west central Florida. In this section, we hope to better clarify key terms and concepts in to help consumers and companies better understand the basics of trials and appeals, and define the laws that govern the process of seeing a criminal and civil case from arraignment to trial to judgment.

Furthermore, a favorable ruling for one party in a bench trial will frequently lead the other party to offer a settlement.

Where the trial is held solely before a judge, it is called a bench trial. Where the trial is held before a group of disinterested members of the community, it is called a jury trial. Bench trials involve fewer formalities, and are typically resolved faster.

Hearings before administrative bodies may have many of the features of a trial before a court, but are typically not referred to as trials. An appellate proceeding is also generally not deemed a trial, because such proceedings are usually restricted to review of the evidence presented before the trial court, and do not permit the introduction of new evidence.

Types of trial divided by the type of dispute Trials can also be divided by the type of dispute at issue.

Criminal trial

A criminal trial is designed to resolve accusations brought by the government against a person accused of a crime. In common law systems, most criminal defendants are entitled to a trial held before a jury.

Civil trial

A civil trial is generally held to settle a dispute between private parties (although the government can both sue and be sued in a civil capacity). Because the state is attempting to use its power to deprive the accused of life, liberty, or property, criminal defendants are afforded greater leeway to defend themselves than parties to a civil suit.

Administrative hearing

Although administrative hearings are not ordinarily considered trials, they retain many elements found in more "formal" trial settings, depending on the jurisdiction. The types of disputes handled in these hearings are governed by administrative law.

Trial: The form of the trial

There are two primary systems for conducting a trial:

* Adversarial: In the common law systems, an adversarial or accusatory approach is used to adjudicate guilt or innocence. The assumption is that the truth is more likely to emerge from the open contest between the prosecution and the defense in presenting the evidence and opposing legal arguments with a judge acting as a neutral referee and as the arbiter of the law. In more serious cases, there is a jury to determine the facts. This polarises the issues, with each competitor acting in its own self-interest, and so presenting the facts and interpretations of the law in a deliberately biased way. The intention is that through a process of argument and counter-argument, examination-in-chief and cross-examination, each side will test the truthfulness, relevancy, and sufficiency of the opponent's evidence and arguments. To maintain fairness, there is a presumption of innocence, and the burden of proof lies on the prosecution. Critics of the system argue that the desire to win is more important than the search for truth. Further, the results are likely to be affected by structural inequalities. Those defendants with resources can afford to hire a the best lawyers, whereas those who are poor are more easily victimized because, even when the State operates a system of financial support for defendants, the quality of legal representation is often inferior to the lawyers acting for the State.

* Inquisitorial: In the civil law systems, the responsibility for supervising the investigation by the police into whether a crime has been committed falls on an examining magistrate or judge who then conducts the trial. The assumption is that the truth is more likely to emerge from an impartial and exhaustive investigation both before and during the trial itself. The examining magistrate or judge acts as an inquisitor who directs the fact-gathering process by questioning witnesses, interrogating the suspect, and collecting other evidence. The lawyers who represent the interests of the State and the accused have a limited role to offer legal arguments and alternative interpretations to the facts that emerge during the process. All the interested parties are expected to co-operate in the investigation by answering the magistrate or judge's questions and, when asked, supplying all relevant evidence. The trial only takes place after all the evidence has been collected and the investigation is completed. Thus, most of the factual uncertainties will already be resolved, and the examining magistrate or judge will already have resolved that there is prima facie of guilt. The trial is no more than the public resolution of the ongoing investigation where the accused has the burden of rebutting the presumption of guilt. Critics argue that the examining magistrate or judge has too much power in that he or she will both investigate and adjudicate on the merits of the case. Although lay assessors do sit as a form of jury to offer advice to the magistrate or judge at the conclusion of the trial, their role is subordinate. Further, because a professional has been in charge of all aspects of the case to the conclusion of the trial, there are fewer opportunities to appeal the conviction alleging some procedural error.

The function of the trial

There are two forms of deterrence:

* Specific: The intention underlying the penal system is to deter future wrongdoing by the defendant if convicted. The punishment is supposed to demonstrate the unfortunate consequences that will follow any decision to break the law. If the convicted person considers the possibility of breaking the law again in the future, the assumption is that the individual will choose not to break the law and so avoid further punishment.

* General: The punishment imposed on the particular accused is also a warning to other potential wrongdoers. Thus the function of the trial is to gain the maximum publicity for the crime and its punishment so that others will be deterred from following in the particular accused's footsteps.

Mistrials

A judge may cancel a trial prior to the return of a verdict; legal parlance designates this as a mistrial.

A judge may declare a mistrial due to:

The court determining that it lacks jurisdiction over a case,
Evidence being admitted improperly,
Misconduct by a party, juror, or an outside actor, if it prevents due process,
A hung jury which cannot reach a verdict with the required degree of unanimity
Disqualification of a juror after the jury is impaneled, if no alternate juror is available and the litigants do not agree to proceed with the remaining jurors.

A declaration of a mistrial generally means that the court must hold a retrial on the same subject.

If the court erroneously declares a mistrial, or if prosecutorial misconduct goaded the defendant into moving for a mistrial, then the US Constitution's protection against double jeopardy bars any retrial; so the prosecution must be terminated.

Appeals

An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. In common law jurisdictions, most commonly, this means formally filing a notice of appeal with a lower court, indicating one's intention to take the matter to the next higher court with jurisdiction over the matter, and then actually filing the appeal with the appropriate appellate court.

Who can appeal

It has been suggested that appellant and appellee be merged into this article or section.

A party who files an appeal is called an appellant, and a party on the other side is an appellee or respondent or, in some jurisdictions, the party who files is known as a petitioner and the party being sued is designated the respondent. Cross-appeals can also occur, when more than one party to a case is unhappy with the decision in some way, often when the winning party claims that more damages were deserved than were awarded.

An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle. The appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court have the discretion to grant or refuse the appellant's demand to appeal the lower court's decision.

In tort, equity, or other civil matters either party to a previous case may file an appeal. In criminal matters, however, the state or prosecution generally has no appeal as of right. And due to the double jeopardy principle, the state or prosecution may never appeal a jury or bench verdict. But in some jurisdictions, the state or prosecution may appeal as of right from a trial court's dismissal of an indictment in whole or in part or from a trial court's granting of a defendant's suppression motion. Likewise, in some jurisdictions, the state or prosecution may appeal an issue of law by leave from the trial court and/or the appellate court.

How an appeal is processed

Generally speaking, the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue).

If the appellate court finds no defect, it "affirms" the judgment. If the appellate court does find a legal defect in the decision "below" (i.e., in the lower court), it may "modify" the ruling to correct the defect, or it may nullify ("reverse" or "vacate") the whole decision or any part of it. It may in addition send the case back ("remand" or "remit") to the lower court for further proceedings to remedy the defect.

In some cases an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review, for example, if the lower court resolved the case by granting a pre-trial motion to dismiss or motion for summary judgment which is usually based only upon written submissions to the trial court and not on any trial testimony.

Another situation is where appeal is by way of re-hearing. Certain jurisdictions permit certain appeals to cause the trial to be heard afresh in the appellate court. Sometimes the appellate court finds a defect in the procedure the parties used in filing the appeal and dismisses the appeal without considering its merits, which has the same effect as affirming the judgment below. (This would happen, for example, if the appellant waited too long, under the appellate court's rules, to file the appeal.)

Generally there is no trial in an appellate court, only consideration of the record of the evidence presented to the trial court and all the pre-trial and trial court proceedings are reviewed -- unless the appeal is by way of re-hearing, new evidence will usually only be considered on appeal in very rare instances, for example if that material evidence was unavailable to a party for some very significant reason such as prosecutorial misconduct.

The appellant has the opportunity to present arguments for the granting of the appeal and the appellee (or respondent) can present arguments against it. Arguments of the parties to the appeal are presented through their appellate lawyers, if represented, or pro se if the party has not engaged legal representation. Those arguments are presented in written briefs and sometimes in oral argument to the court at a hearing. At such hearings each party is allowed a brief presentation at which the appellate judges ask questions based on their review of the record below and the submitted briefs.

United States

The United States legal system generally recognizes two types of appeals: a trial de novo or an appeal on the record.

A trial de novo is usually available for review of informal proceedings conducted by some minor judicial tribunals in proceedings that do not provide all the procedural attributes of a formal judicial trial. If unchallenged, these decisions have the power to settle more minor legal disputes once and for all. If a party is dissatisfied with the finding of such a tribunal, one generally has the power to request a trial de novo by a court of record. In such a proceeding, all issues and evidence may be developed newly, as though never heard before, and one is not restricted to the evidence heard in the lower proceeding. Sometimes, however, the decision of the lower proceeding is itself admissible as evidence, thus helping to curb frivolous appeals.

In an appeal on the record from a decision in a judicial proceeding, both appellant and respondent are bound to base their arguments wholly on the proceedings and body of evidence as they were presented in the lower tribunal. Each seeks to prove to the higher court that the result they desired was the just result. Precedent and case law figure prominently in the arguments. In order for the appeal to succeed, the appellant must prove that the lower court committed reversible error, that is, an impermissible action by the court acted to cause a result that was unjust, and which would not have resulted had the court acted properly. Some examples of reversible error would be erroneously instructing the jury on the law applicable to the case, permitting seriously improper argument by an attorney, admitting or excluding evidence improperly, acting outside the court's jurisdiction, injecting bias into the proceeding or appearing to do so, juror misconduct, etc. The failure to formally object at the time, to what one views as improper action in the lower court, may result in the affirmance of the lower court's judgment on the grounds that one did not "preserve the issue for appeal" by objecting.

In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review. Under this standard, the appellate court gives deference to the lower court's view of the evidence, and reverses its decision only if it was a clear abuse of discretion. This is usually defined as a decision outside the bounds of reasonableness. On the other hand, the appellate court normally gives less deference to a lower court's decision on issues of law, and may reverse if it finds that the lower court applied the wrong legal standard.

In some rare cases, an appellant may successfully argue that the law under which the lower decision was rendered was unconstitutional or otherwise invalid, or may convince the higher court to order a new trial on the basis that evidence earlier sought was concealed or only recently discovered. In the case of new evidence, there must be a high probability that its presence or absence would have made a material difference in the trial. Another issue suitable for appeal in criminal cases is effective assistance of counsel. If a defendant has been convicted and can prove that his lawyer did not adequately handle his case and that there is a reasonable probability that the result of the trial would have been different had the lawyer given competent representation, he is entitled to a new trial.

An appellate court is a court that hears cases, in which a lower court -- either a trial court or a lower-level appellate court -- has already made a decision, but in which at least one party to the action wants to challenge this ruling based upon some legal grounds that are allowed to be appealed either by right or by leave of the appellate court. These grounds typically include errors of law, fact, or due process.

In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts.

In the United States, a lawyer traditionally starts an oral argument to any appellate court with the words "May it please the court."




Trial & Appellate Information About Us Attorneys News & Events How we serve our clients Contact Us Areas of Practice Home Visit Bush ‌ Ross	TRIAL & APPELLATE This information is a public service of the Trial and Appellate Practice Group serving the greater Tampa Bay area, including St. Petersburg, Largo, Clearwater, Sarasota, Bradenton and much of west central Florida. In this section, we hope to better clarify key terms and concepts in to help consumers and companies better understand the basics of trials and appeals, and define the laws that govern the process of seeing a criminal and civil case from arraignment to trial to judgment. Furthermore, a favorable ruling for one party in a bench trial will frequently lead the other party to offer a settlement. Where the trial is held solely before a judge, it is called a bench trial. Where the trial is held before a group of disinterested members of the community, it is called a jury trial. Bench trials involve fewer formalities, and are typically resolved faster. Hearings before administrative bodies may have many of the features of a trial before a court, but are typically not referred to as trials. An appellate proceeding is also generally not deemed a trial, because such proceedings are usually restricted to review of the evidence presented before the trial court, and do not permit the introduction of new evidence. Types of trial divided by the type of dispute Trials can also be divided by the type of dispute at issue. Criminal trial A criminal trial is designed to resolve accusations brought by the government against a person accused of a crime. In common law systems, most criminal defendants are entitled to a trial held before a jury. Civil trial A civil trial is generally held to settle a dispute between private parties (although the government can both sue and be sued in a civil capacity). Because the state is attempting to use its power to deprive the accused of life, liberty, or property, criminal defendants are afforded greater leeway to defend themselves than parties to a civil suit. Administrative hearing Although administrative hearings are not ordinarily considered trials, they retain many elements found in more "formal" trial settings, depending on the jurisdiction. The types of disputes handled in these hearings are governed by administrative law. Trial: The form of the trial There are two primary systems for conducting a trial: * Adversarial: In the common law systems, an adversarial or accusatory approach is used to adjudicate guilt or innocence. The assumption is that the truth is more likely to emerge from the open contest between the prosecution and the defense in presenting the evidence and opposing legal arguments with a judge acting as a neutral referee and as the arbiter of the law. In more serious cases, there is a jury to determine the facts. This polarises the issues, with each competitor acting in its own self-interest, and so presenting the facts and interpretations of the law in a deliberately biased way. The intention is that through a process of argument and counter-argument, examination-in-chief and cross-examination, each side will test the truthfulness, relevancy, and sufficiency of the opponent's evidence and arguments. To maintain fairness, there is a presumption of innocence, and the burden of proof lies on the prosecution. Critics of the system argue that the desire to win is more important than the search for truth. Further, the results are likely to be affected by structural inequalities. Those defendants with resources can afford to hire a the best lawyers, whereas those who are poor are more easily victimized because, even when the State operates a system of financial support for defendants, the quality of legal representation is often inferior to the lawyers acting for the State. * Inquisitorial: In the civil law systems, the responsibility for supervising the investigation by the police into whether a crime has been committed falls on an examining magistrate or judge who then conducts the trial. The assumption is that the truth is more likely to emerge from an impartial and exhaustive investigation both before and during the trial itself. The examining magistrate or judge acts as an inquisitor who directs the fact-gathering process by questioning witnesses, interrogating the suspect, and collecting other evidence. The lawyers who represent the interests of the State and the accused have a limited role to offer legal arguments and alternative interpretations to the facts that emerge during the process. All the interested parties are expected to co-operate in the investigation by answering the magistrate or judge's questions and, when asked, supplying all relevant evidence. The trial only takes place after all the evidence has been collected and the investigation is completed. Thus, most of the factual uncertainties will already be resolved, and the examining magistrate or judge will already have resolved that there is prima facie of guilt. The trial is no more than the public resolution of the ongoing investigation where the accused has the burden of rebutting the presumption of guilt. Critics argue that the examining magistrate or judge has too much power in that he or she will both investigate and adjudicate on the merits of the case. Although lay assessors do sit as a form of jury to offer advice to the magistrate or judge at the conclusion of the trial, their role is subordinate. Further, because a professional has been in charge of all aspects of the case to the conclusion of the trial, there are fewer opportunities to appeal the conviction alleging some procedural error. The function of the trial There are two forms of deterrence: * Specific: The intention underlying the penal system is to deter future wrongdoing by the defendant if convicted. The punishment is supposed to demonstrate the unfortunate consequences that will follow any decision to break the law. If the convicted person considers the possibility of breaking the law again in the future, the assumption is that the individual will choose not to break the law and so avoid further punishment. * General: The punishment imposed on the particular accused is also a warning to other potential wrongdoers. Thus the function of the trial is to gain the maximum publicity for the crime and its punishment so that others will be deterred from following in the particular accused's footsteps. Mistrials A judge may cancel a trial prior to the return of a verdict; legal parlance designates this as a mistrial. A judge may declare a mistrial due to: The court determining that it lacks jurisdiction over a case, Evidence being admitted improperly, Misconduct by a party, juror, or an outside actor, if it prevents due process, A hung jury which cannot reach a verdict with the required degree of unanimity Disqualification of a juror after the jury is impaneled, if no alternate juror is available and the litigants do not agree to proceed with the remaining jurors. A declaration of a mistrial generally means that the court must hold a retrial on the same subject. If the court erroneously declares a mistrial, or if prosecutorial misconduct goaded the defendant into moving for a mistrial, then the US Constitution's protection against double jeopardy bars any retrial; so the prosecution must be terminated. Appeals An appeal is the act or fact of challenging a judicially cognizable and binding judgment to a higher judicial authority. In common law jurisdictions, most commonly, this means formally filing a notice of appeal with a lower court, indicating one's intention to take the matter to the next higher court with jurisdiction over the matter, and then actually filing the appeal with the appropriate appellate court. Who can appeal It has been suggested that appellant and appellee be merged into this article or section. A party who files an appeal is called an appellant, and a party on the other side is an appellee or respondent or, in some jurisdictions, the party who files is known as a petitioner and the party being sued is designated the respondent. Cross-appeals can also occur, when more than one party to a case is unhappy with the decision in some way, often when the winning party claims that more damages were deserved than were awarded. An appeal as of right is one that is guaranteed by statute or some underlying constitutional or legal principle. The appellate court cannot refuse to listen to the appeal. An appeal by leave or permission requires the appellant to move for leave to appeal; in such a situation either or both of the lower court and the appellate court have the discretion to grant or refuse the appellant's demand to appeal the lower court's decision. In tort, equity, or other civil matters either party to a previous case may file an appeal. In criminal matters, however, the state or prosecution generally has no appeal as of right. And due to the double jeopardy principle, the state or prosecution may never appeal a jury or bench verdict. But in some jurisdictions, the state or prosecution may appeal as of right from a trial court's dismissal of an indictment in whole or in part or from a trial court's granting of a defendant's suppression motion. Likewise, in some jurisdictions, the state or prosecution may appeal an issue of law by leave from the trial court and/or the appellate court. How an appeal is processed Generally speaking, the appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether that decision was legally sound or not. The appellate court will typically be deferential to the lower court's findings of fact (such as whether a defendant committed a particular act), unless clearly erroneous, and so will focus on the court's application of the law to those facts (such as whether the act found by the court to have occurred fits a legal definition at issue). If the appellate court finds no defect, it "affirms" the judgment. If the appellate court does find a legal defect in the decision "below" (i.e., in the lower court), it may "modify" the ruling to correct the defect, or it may nullify ("reverse" or "vacate") the whole decision or any part of it. It may in addition send the case back ("remand" or "remit") to the lower court for further proceedings to remedy the defect. In some cases an appellate court may review a lower court decision de novo (or completely), challenging even the lower court's findings of fact. This might be the proper standard of review, for example, if the lower court resolved the case by granting a pre-trial motion to dismiss or motion for summary judgment which is usually based only upon written submissions to the trial court and not on any trial testimony. Another situation is where appeal is by way of re-hearing. Certain jurisdictions permit certain appeals to cause the trial to be heard afresh in the appellate court. Sometimes the appellate court finds a defect in the procedure the parties used in filing the appeal and dismisses the appeal without considering its merits, which has the same effect as affirming the judgment below. (This would happen, for example, if the appellant waited too long, under the appellate court's rules, to file the appeal.) Generally there is no trial in an appellate court, only consideration of the record of the evidence presented to the trial court and all the pre-trial and trial court proceedings are reviewed -- unless the appeal is by way of re-hearing, new evidence will usually only be considered on appeal in very rare instances, for example if that material evidence was unavailable to a party for some very significant reason such as prosecutorial misconduct. The appellant has the opportunity to present arguments for the granting of the appeal and the appellee (or respondent) can present arguments against it. Arguments of the parties to the appeal are presented through their appellate lawyers, if represented, or pro se if the party has not engaged legal representation. Those arguments are presented in written briefs and sometimes in oral argument to the court at a hearing. At such hearings each party is allowed a brief presentation at which the appellate judges ask questions based on their review of the record below and the submitted briefs. United States The United States legal system generally recognizes two types of appeals: a trial de novo or an appeal on the record. A trial de novo is usually available for review of informal proceedings conducted by some minor judicial tribunals in proceedings that do not provide all the procedural attributes of a formal judicial trial. If unchallenged, these decisions have the power to settle more minor legal disputes once and for all. If a party is dissatisfied with the finding of such a tribunal, one generally has the power to request a trial de novo by a court of record. In such a proceeding, all issues and evidence may be developed newly, as though never heard before, and one is not restricted to the evidence heard in the lower proceeding. Sometimes, however, the decision of the lower proceeding is itself admissible as evidence, thus helping to curb frivolous appeals. In an appeal on the record from a decision in a judicial proceeding, both appellant and respondent are bound to base their arguments wholly on the proceedings and body of evidence as they were presented in the lower tribunal. Each seeks to prove to the higher court that the result they desired was the just result. Precedent and case law figure prominently in the arguments. In order for the appeal to succeed, the appellant must prove that the lower court committed reversible error, that is, an impermissible action by the court acted to cause a result that was unjust, and which would not have resulted had the court acted properly. Some examples of reversible error would be erroneously instructing the jury on the law applicable to the case, permitting seriously improper argument by an attorney, admitting or excluding evidence improperly, acting outside the court's jurisdiction, injecting bias into the proceeding or appearing to do so, juror misconduct, etc. The failure to formally object at the time, to what one views as improper action in the lower court, may result in the affirmance of the lower court's judgment on the grounds that one did not "preserve the issue for appeal" by objecting. In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review. Under this standard, the appellate court gives deference to the lower court's view of the evidence, and reverses its decision only if it was a clear abuse of discretion. This is usually defined as a decision outside the bounds of reasonableness. On the other hand, the appellate court normally gives less deference to a lower court's decision on issues of law, and may reverse if it finds that the lower court applied the wrong legal standard. In some rare cases, an appellant may successfully argue that the law under which the lower decision was rendered was unconstitutional or otherwise invalid, or may convince the higher court to order a new trial on the basis that evidence earlier sought was concealed or only recently discovered. In the case of new evidence, there must be a high probability that its presence or absence would have made a material difference in the trial. Another issue suitable for appeal in criminal cases is effective assistance of counsel. If a defendant has been convicted and can prove that his lawyer did not adequately handle his case and that there is a reasonable probability that the result of the trial would have been different had the lawyer given competent representation, he is entitled to a new trial. An appellate court is a court that hears cases, in which a lower court -- either a trial court or a lower-level appellate court -- has already made a decision, but in which at least one party to the action wants to challenge this ruling based upon some legal grounds that are allowed to be appealed either by right or by leave of the appellate court. These grounds typically include errors of law, fact, or due process. In different jurisdictions, appellate courts are also called appeals courts, courts of appeals, superior courts, or supreme courts. In the United States, a lawyer traditionally starts an oral argument to any appellate court with the words "May it please the court."



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