Appealing a Criminal Conviction in Virginia

Attorney, The Creekmore Law Firm PC


I’m continuing my series of posts providing an overview of appeals and diving into specifics on particular appellate topics. Last week, I previously provided an overview of appeals in general and described in particular how they differ from trials. I gave a general overview of the appellate process in Virginia state courts. In this post, I’d like to discuss appealing a criminal conviction in Virginia, and in particular, the kinds of error that can be challenged on appellate review.

Recalling the Nature of an Appeal in Virginia

As I previously discussed, appeals come in two flavors in Virginia: (1) “de novo” appeals, which are simply brand new trials, and (2) true appeals–that is, court proceedings designed to find trial error and not designed to re-litigate factual issues.  The former kind of appeal lies only from a proceeding in general district court, because of that court’s informal nature.  The latter kind of appeal is what lawyers generally mean when we use the word “appeal.”  So, what do you do when confronted with a criminal conviction and no automatic right to a new trial?  Why, search for trial court error, of course.

Trial Court Error in Criminal Appeals in Virginia

Trial court error in criminal cases in Virginia can take on many forms.

As with civil cases, a common error alleged in a criminal appeal usually relates to the application of a rule of evidence.  Hearsay, expert testimony, and other rules-of-evidence questions are common fodder for a criminal appeal.  These kind of challenges tend to have a legal component to them which makes them more likely than other kinds of appellate challenges to result in reversal of  a conviction.

Another common kind of error often subject to an appeal–but rarely serving as the basis for reversal–is a challenge to the sufficiency of the evidence to convict a person of a particular crime.  Effective challenges of this kind will show that no evidence was presented to prove a particular element of an offense, or that evidence was unfairly interpreted or construed as satisfying an element of an offense.  In contrast, an ineffective challenge to the sufficiency of the evidence–a kind that Virginia appellate courts see quite often–merely seeks to re-litigate evidence and re-decide factual questions that are the rightful province of a jury or judge.

A final kind of error frequently the subject of a criminal appeal are errors relating to Fourth, Fifth, and Sixth Amendment constitutional violations.  In general, evidence obtained as the result of (1) an illegal search or seizure under the Fourth Amendment, (2) police questioning made illegal under the Fifth Amendment (think of the famous case Miranda v. Arizona), or (3) a violation of a defendant’s right to confront the witnesses against him as provided by the Sixth Amendment are often the subject of appeals in Virginia’s state courts.   The merit of such challenges vary depending upon the particular facts of the case.

Can an Appeal Succeed?

Whether a particular appeal will succeed depends on several variables.  Every case is different.  An experienced appellate litigator will identify the best issues for appeal, will identify the best cases applicable to a particular issue, and will develop the best legal arguments to maximize the chances of reversal of a conviction based upon the issues identified.  As I will discuss in a later post, an appellate attorney’s ability to characterize an issue as a legal question or a mixed question–rather than a much harder to overcome factual question–can also help the chances of overturning a criminal conviction in Virginia.  That is why it is particularly important to have an attorney experienced with the appellate process if you, a friend, or a relative are seeking the reversal of a criminal conviction.  While there are never any guarantees, and while every case is different, such experience can only improve the chances of success.

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