Sex Offense Appeals

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People who are convicted of crimes, including sex crimes, may want to appeal the verdict. During the appeals process, the convicted person asks an appellate court to review and overturn the judge or jury’s decision. An appeal is not like another trial--defendants (now called appellants) do not get to present witnesses and re-argue the case in an attempt to convince the appellate judges that the prosecutor has failed to prove the case. Instead, as explained more fully below, the appellant tries to show that the trial judge made procedural mistakes that resulted in an unfair trial, that the evidence was insufficient to support the verdict, or that the trial court lacked the jurisdiction (power) to hear the case. Winning an appeal on any of these grounds is an uphill battle, and most convictions are affirmed. But that does not mean that an appeal is not worth pursuing.

For more information on specific sex crimes, see Sex Crimes. For information on how a successful appeal can lead to the dismissal of the case, see Getting a Case Dismissed After Conviction.

Sex crimes can include a broad range of criminal convictions, from very serious offenses, such as rape, sexual battery, child molestation, child pornography, and child enticement, to less serious offenses involving teen sexting, prostitution, and statutory rape. Like other criminal convictions, sex crimes can result in time in prison or jail, fines, or probation. Sex crimes can also result in lifetime mandatory sex offender registration.

The Criminal Appeals Process

On appeal, defendants are limited to raising issues that were raised at trial. That is, the defendant can make arguments on appeal only if he or she (through trial counsel) raised the issue at trial and lost. For example, if a defendant argued unsuccessfully at trial that a witness’s identification should not be admitted because a police officer pressured the witness to identify defendant, then the defendant can raise the same argument on appeal. However, he cannot raise on appeal the argument that he should have been able to present evidence that eyewitness identifications are unreliable unless he asked the trial court to allow him to present that kind of evidence.

Common issues raised on appeal include:

  • rulings by the trial court to allow or disallow certain evidence
  • rulings on other pre-trial motions
  • the composition of the jury
  • the instructions given to the jury, and
  • claims that the prosecutor's arguments were inappropriate and unfair.

Even if a defendant is able to show that an error occurred at trial, the conviction will not be overturned unless the error impacts a “substantial right” of the defendant, which is a very high bar. For example, even if the court finds that the prosecutor made some inappropriate remarks during argument, if there was other evidence of defendant’s guilt, then the verdict is not likely to be overturned. Defendants are entitled to fair trials, not perfect trials.

Habeas Corpus Proceedings

What if a defendant has a claim about evidence that should have been present at trial, but was not? A “writ of habeas corpus” allows a defendant (called the petitioner) to raise many issues that cannot be raised in an appeal, because a writ is not limited to re-arguing points that were raised and lost below. In fact, its main function is to raise issues that are by definition “outside the record.” In habeas corpus proceedings, also called post-conviction proceedings, the petitioner files a petition for writ of habeas corpus with the trial court. If the court denies the petition, the petitioner may appeal the denial.

Common claims raised in post-conviction proceedings include:

  • Juror misconduct. For example, a petitioner might argue that jurors improperly conducted their own research on the evidence.
  • Newly discovered evidence of innocence. Sometimes, new evidence (such as DNA test results) becomes available after the trial is over.
  • Failure of the prosecutor to turn over evidence of innocence. Known by the Supreme Court case by that name, a Brady violation can involve witness statements or physical evidence, and
  • Ineffective assistance of counsel. Lawyer shortcomings can include failing to investigate or present compelling and available evidence to the jury.

Sex Offender Registration

For many people, one of the most unpleasant consequences of a sex crimes conviction is sex offender registration. Registered offenders must make personal information, including their names, photos, and addresses, available to law enforcement agents, who may make the information available to the public, often via the Internet. Being a registered sex offender makes it difficult to find work or housing, among other things. A successful appeal or writ could result in removal from a sex offender registry.

For more information, see State Sex Offender Registration.

Sealing or Expunging a Criminal Record

In many states, if you are convicted of a less serious crime and then stay out of trouble for a number of years, you may be able to expunge (destroy) or seal (hide) your criminal record. Once your record is expunged or sealed, you can honestly answer “no” if you are asked if you have been convicted of a crime. However, there are restrictions against expunging or sealing criminal records of violent sex crimes and sex crimes against children.

For more information, see Expunging or Sealing an Adult Criminal RecordExpunging or Sealing a Juvenile Court Record, and The Limits of Expunging Your Criminal Record.

Obtaining Legal Assistance

If you or someone you know has been convicted of a sex crime, you should contact an attorney who has experience handling criminal appeals. The appellate process can be complicated and your best bet for a successful appeal is to work with an attorney who specializes in this area of the law.

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