Being an appellate lawyer is different from being, say, a personal injury lawyer or a real estate lawyer. Handling an appeal requires above all the ability to analyze infinitely varied but specific questions of law, regardless of the kind of law involved in the trial. A good appellate lawyer, then, will present and argue civil, administrative, or criminal appeals equally well.
Perhaps the two most frequent grounds for criminal appeals are those touching on issues of evidence and sentencing. This makes sense. The argument that “the jury got it wrong” or “I was tricked into a plea bargain” can only go so far, though they arise in some cases. More typical though is the question of whether the jury should or should not have seen a piece of evidence, or the severity of the sentence. (In all fairness, both may take a back seat to claims that the defendant’s lawyer messed up. That will have to be a topic for another week.)
Evidentiary issues are the topic of this specific post and they are particularly tricky. But while the rules of evidence may seem arcane, or at least technical, to many, they are critical. Their very purpose is to ensure as fair a trial as possible and allow the jury to decide the matter before them. Without those rules, the most irrelevant or unfair fact could make its way into trial regardless of whether that fact was evidence of anything at all. The balancing act on when to admit evidence of a defendant’s prior crime is a good example. The lines may seem arbitrary, but they are the result of experience and forethought. They ensure that the jury decides whether the defendant is guilty of the crime he is accused of now, not some older conduct, while allowing the defendant’s history to inform the evidence presented in court.
Such balancing acts are frequent, both as a matter of evidentiary rules and as a matter of the constitutionality of the evidence’s gathering. Two Supreme Court decisions from last term illustrate that. On one hand, a police dog that alerts its handler from outside a car creates probable cause to search the vehicle. But a police dog that alerts its handler from outside the front door of a house, on the porch, is an unconstitutional search because one’s expectation of privacy extends to one’s porch – but not, apparently, to the space an inch away from your car door. So what if the dog gets its nose inside a rolled down window? I would love to say, ask a lawyer, but that is one case where a few judges need to speak before we know the answer.