The Death Penalty Appeals Process

By , Attorney · UC Berkeley School of Law

In most states, the appeals process for cases that result in a death sentence, sometimes called "capital cases," is very different from the process for other criminal cases. Death sentences are imposed only in cases of first degree murder (sometimes called murder with special circumstances). Many states have no death penalty and in some states that do have the death penalty, very few people are ever sentenced to death. However, there are a handful of states, mostly in the South, where death penalties are imposed regularly.

Capital Trials

Before an appeal, there must be a trial. In capital cases, the trial has two parts. First, the jury decides whether the defendant is guilty of the crime beyond a reasonable doubt. Then, the jury must decide whether to impose a death sentence. For this part of the trial, the jury can consider all sorts of information, not only about the crime, but also about the defendant. For example, oftentimes the defense attorney will present information about the defendant's upbringing, family, mental condition, and home life. This "penalty phase" of the trial is unique among criminal cases. In non-capital cases, information about the defendant's background is typically presented to the judge in the probation department's pre-sentence report, prepared to aid the judge in deciding on a sentence.

Direct Appeal

In some states, death penalty cases on appeal are treated like other felony cases. After conviction, the defendant appeals to the state court of appeal. If the court of appeal affirms the conviction, the defendant can seek review at the state supreme court, but the supreme court does not have to take the case and may simply let the appellate court's decision stand. For death penalty cases in other states, such as California, there is no intermediate appellate court review. The case goes directly from the trial court that convicted the defendant and imposed the death penalty to the state supreme court.

Either way, once on appeal, the defendant (represented by appellate defense counsel) files an appellate brief and the state (represented by the State's Attorney or Attorney General) files a reply. The court, made up of a panel of justices or all the justices on the court, hears oral argument and then issues a decision. If the justices deny the appeal, the defendant may ask the United States Supreme Court to hear the case, but the Court is not required to do so.

What Issues Can Be Raised on Appeal?

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 before trial that his confession should not be admitted into evidence and heard by the jury because police coerced him, then the defendant can raise the same argument on appeal. However, he cannot raise on appeal the argument that his confession should not have been admitted because he was not given his Miranda rights, unless he raised that argument before the trial court.

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.

This list is not exhaustive.

Habeas Corpus Proceedings

A "writ of habeas corpus" often accompanies a death penalty appeal. A habeas writ allows a defendant (now 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 to the state appellate court and then to the state supreme court. These are known as discretionary appeals, which means that it is up to the justices to decide whether to grant review and consider the case. Common claims raised in post-conviction proceedings include:

  • Juror misconduct. For example, a petitioner might argue that jurors researched the case on their own by looking at ballistics and blood spatter information online.
  • Newly discovered evidence of innocence. Sometimes, new evidence turns up or becomes available (such as DNA test results.
  • 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.

Federal Court

Defendants with capital convictions in state court may also file a parallel habeas corpus proceeding in federal court, but the petitioner is limited to raising federal issues. For example, if the trial court prohibited the defendant from talking to his defense counsel during the trial, petitioner could claim that the court denied his right to counsel. This is a federal claim because it involves the denial of a right guaranteed by the United States Constitution. Petitioners are not allowed to raise issues involving rights guaranteed by state constitutions or statutes during federal habeas proceedings (those issues must be raised on appeal or during state habeas proceedings).

To pursue a federal writ, the petitioner first files the petition in the federal district court located either in the state where the defendant is being held or in the state where the defendant was convicted -- for most defendants, this is the same state. (28 U.S.C. § 2241.) If the writ is denied (there is no requirement that the court hear the merits of the writ), or heard and then denied, the prisoner can appeal the denial to the federal court of appeals, and the United States Supreme Court. Again, neither court is obligated to hear the merits of the case.


That last step in the capital appeals process is clemency, a request to the state governor (or, sometimes a special board) for relief from the death sentence. The governor may postpone the execution or commute the defendant's sentence to life in prison.

Obtaining Legal Assistance

Most people are familiar with a person's right to have appointed counsel, such as a public defender, represent them at trial if they cannot hire an attorney. But this right to counsel does not, in many states, extend to appeal or habeas proceedings, even when the case involves a death sentence. As a practical matter, almost all capital defendants are appointed counsel, at least for their appeals. If you or someone you know is facing capital charges, it is imperative that you work with an attorney who has experience in death penalty cases. In almost all states, death penalty cases and appeals are subject to specialized rules. Proceeding without an experienced attorney is ill advised.

Talk to a Defense attorney
We've helped 95 clients find attorneys today.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please enter a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Please enter a valid Case Description
Description is required

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you