Sex Offense Appeals

A person convicted of a sex crime can appeal the verdict or the sentence and have a higher court consider whether any errors occurred at trial or in sentencing that entitle the convicted person to a new trial, dismissal of the case, or a different sentence.

A person who is convicted of a crime, including a sex crime, can appeal the conviction or sentence. By filing an appeal, the convicted person asks an appellate court to review and overturn the judge or jury’s decision. A defendant who files an appeal is referred to as “the appellant” in the appeal process.

An appeal is not a second trial. Appellants do not get to present witnesses and evidence and try to convince the appellate court judges that they are not guilty or should have been found not guilty. 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 there was not enough evidence 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 it is worthwhile to consult an experienced appellate attorney to review a conviction because, in some cases, errors do occur or the evidence is legally not strong enough to support the finding of guilt, and the decision is reversed. If an appellate court reverses the conviction, the appellant may get a new trial or the case may be dismissed.

For information on how a successful appeal can lead to the dismissal of a 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 a jail or prison sentence, fines, and/or probation. Sex crimes also can result in lifetime mandatory sex offender registration.

The Criminal Appeals Process

On appeal, defendants are limited to presenting issues that were raised at trial. That means the appellant can argue on appeal only about issues that were presented at the trial. For example, if a defendant or defendant’s counsel argued unsuccessfully at trial that a witness’s identification should not be admitted because a police officer pressured the witness to identify the defendant, then the defendant can raise the same argument on appeal and ask the appellate court to review the trial judge’s ruling on that evidence. However, a defendant cannot argue in the appeal that he should have been able to present evidence that eyewitness identifications are unreliable if he did not ask the trial judge to allow him to present that kind of evidence.

Common issues raised on appeal include:

  • rulings by the trial court to allow or not allow certain evidence to be presented
  • rulings on other pre-trial motions
  • who was allowed or not allowed to be on the jury
  • the instructions given to the jury, and
  • claims that the prosecutor's arguments were inappropriate and unfair.

Even if an appellant 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, such as the right to confront a witness who testified against the defendant. For example, even if the court finds that the prosecutor made some inappropriate remarks during closing argument that unfairly prejudiced the defendant, if there was enough evidence to prove the defendant was guilty, the verdict is not likely to be overturned. The rationale is that defendants are entitled to fair trials but not perfect trials. Lawyers call these errors "harmless errors," because although they were mistakes, their impact was minor when compared with other, counterbalancing evidence of guilt

Habeas Corpus Proceedings

What if a defendant has a claim about evidence that should have been presented at trial, but was not? In that situation, a person convicted of a crime can file a “writ of habeas corpus.” A person who files a writ of habeas corpus is referred to as the “petitioner” in the habeas proceeding, which also is called a “post-conviction proceeding.”

A petitioner can present many issues in the habeas proceeding that cannot be raised in an appeal, because a habeas proceeding is not limited to a review of arguments made during the trial. In fact, the main function of a habeas proceeding is to address issues that, for certain reasons, were not addressed during the trial. For instance, in a habeas proceeding, a court can address new evidence that was not presented during the trial because it was not available to the defendant and defendant’s counsel or because they did not know the evidence existed.

In a habeas proceeding, the petitioner files a petition for writ of habeas corpus with the trial court. If the court grants the petition, the defendant may be entitled to a new trial. If the court denies the petition, the petitioner can appeal the denial. The appeal of the habeas decision is separate from an appeal of the criminal conviction.

Common claims raised in post-conviction proceedings include:

  • Juror misconduct. A petitioner might argue that he and his attorney learned after the trial that the jurors improperly conducted their own research on the evidence, which is not permitted in a criminal trial.
  • Newly discovered evidence of innocence. Sometimes, new evidence (such as DNA test results) or a new witness becomes available after the trial is over.
  • Failure of the prosecutor to turn over evidence of innocence. Known by the name of the appellant in a famous Supreme Court case, a Brady violation can involve witness statements or physical evidence that the prosecutor did not disclose to the defendant or the court.
  • Ineffective assistance of counsel. Petitioners can argue that their lawyers' shortcomings prevented them from having a trial that meets the requirements of due process. Such mistakes can include failing to investigate or present compelling and available evidence to the jury, or failing to prepare at all for the trial.

A Word About Deadlines

All courts have deadlines for filing appeals and habeas corpus petitions. These filing deadlines vary, but it is very important to know and follow them. Failure to follow a filing deadline can result in a denied or dismissed appeal or a denied habeas corpus claim.

Sex Offender Registration

For many people, the most dire consequence of a sex crime 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 defendant can appeal a sentence that includes an order to register as a sex offender. To win this appeal, the defendant must show that the order to register was not required or permitted by the law governing his case. If the appeal is successful, the defendant will not have to register or can be removed from the sex offender registry if already registered.

Sealing or Expunging a Criminal Record

In many states, if you are convicted of a less serious crime and then have no arrests or criminal convictions 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, whether it is possible to seal or expunge a conviction for a sex crime varies from state to state and most states have 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 Record, Expunging 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. An appellate attorney can review the record of your trial and advise you as to whether the evidence was strong enough to support the conviction, according to the law, and whether the trial court made any rulings that might be reversed on appeal. The appellate process can be complicated. If you do appeal, you are more likely to be successful if you are represented by an attorney who specializes in this area of the law.

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