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What is the Standard of Review in Federal Criminal Appeals?

March 21, 2024 Uncategorized


What is the Standard of Review in Federal Criminal Appeals?

So your probably wondering, what the heck is the “standard of review” in a federal criminal appeal anyway? Well, don’t worry, I’ll break it down for you. Basically, it refers to how closely the appeals court looks at the lower court’s decision. They don’t just redo the whole trial – they kind of have to defer to what the trial judge and jury decided. But they don’t just rubber stamp everything either. So how closely do they look? Well, it depends.

Clearly Erroneous for Facts

For factual issues, appeals courts use what’s called the “clearly erroneous” standard. That means they have to accept the trial court’s findings of fact unless they think they screwed up badly. Like, made a mistake that’s totally obvious from the record. But if their’s reasonable disagreement about what the facts show, the appeals court pretty much has to side with the trial judge (the finder of fact). So their’s a presumption that the trial court got the facts right.

De Novo for Law

But for legal issues, appeals courts use “de novo” review – that means no deference. They look at the law fresh and make their own judgement. Because trial judges don’t get any special say on what the law is – that’s for appeals courts to figure out. So if their’s a dispute about interpreting a statute or applying a Supreme Court case or something, appeals courts won’t defer. They’ll just decide for themselves what the law means.

Plain Error for Stuff Not Objected To

Their’s also “plain error” review. That’s for stuff the defense lawyer didn’t object to at trial when they were supposed to. Because you can’t just stay silent about errors at trial and then scream about them on appeal later. You gotta speak up when it happens! But if their was an obvious, serious screw-up that affected substantial rights, appeals courts can notice that even without an objection. But the bar is really high – it’s gotta jump out as an obvious miscarriage of justice from the record.

Harmless Error Unless It Affected the Outcome

And one more – even if their was an error, appeals courts won’t reverse unless it actually impacted the outcome. Under “harmless error” review, mistakes that don’t affect substantial rights get ignored. So if the result would’ve been the same either way, no redo. But if the error possibly changed the result, then yeah, it gets sent back for a new trial.

What Gets Reviewed Depends on the Issue

So in summary, it depends – factual issues get “clearly erroneous” review, legal questions get fresh “de novo” review, stuff not objected to at trial has to be “plain error”, and even errors that happened might be “harmless.” The standard changes based on what the issue is. But basically, appeals courts have to show some deference to the trial proceedings unless stuff went really wrong. It’s not just a total do-over.

Common Standards Come Up a Lot

These standards come up ALL THE TIME in federal criminal appeals, on all sorts of issues. Sufficiency of the evidence, interpreting the elements of crimes and defenses, jury instructions, evidentiary rulings, sentencing decisions – you name it. The standard often determines whether the appeal succeeds or gets shot down. So defense lawyers and prosecutors gotta structure their arguments to fit the appropriate standard.

Strategize Based on the Likely Standard

Smart lawyers think about the standard of review before they even file the appeal. Like, if it’s gonna be an uphill battle getting “clear error” on factual issues, maybe focus on legal claims with fresh “de novo” review instead. Or if you know jury instructions get de novo review, attacking those might be a good strategy even if other errors could only get “plain error” or “harmless error” review. Choose your strongest stuff that’ll get the closest, least deferential look from the appeals court.

The Standard Sets the Tone

Not only does the standard control reversals, it also sets the tone of appeals opinions. Like if a ruling gets upheld as “not clearly erroneous” or “harmless error”, the appeals court is kinda saying the trial court screwed up but they’ll allow it. But if it’s reversed “de novo”, that’s the appeals court really laying down the law for the lower court. So pay attention to what verdicts on standards say beyond just the result.


So I hope this give’s you a better handle on what “standard of review” means and why it matters so much! Federal appeals ain’t a retrial – courts can only redo lower court decisions if they were clearly wrong based on the issue and standard. It ain’t easy winning reversals. So study up on standards of review before appealing that conviction or sentence! Let me know if you have any other questions.


Here are some sources I used for this article:

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