Real Talk About Reversible Error

Brandon Bullard
September 4, 2021

Non-lawyer friends often ask me what I do as an appellate lawyer. Appeals are mostly written and thus lack the theater of a trial, which is what makes for good television. So while you hear about the results of appeals (“an appellate court held today that blah, blah, blah”), you rarely see much of the process. And when I say that I’m an appellate lawyer, it’s understandable that others aren’t familiar with what that means. My answer is usually that I do a lot of things as an appellate lawyer. An appellate lawyer is a writer, a strategist, a researcher, a consultant. But in the end, an appellate lawyer’s skillset boils down to the art of proving or refuting reversible error.

If my friend is still speaking to me after that, the next question is usually about what reversible error is. That is a fair question, and, I think, a decent place to start this blog. So, I hope you’ll come along with me for a little real talk about reversible error.

Reversible Error: The Big Picture

At the outset, it’ll help for me to put the question of reversible error in the context of what I do. I’ve spent my entire career as a criminal appellate lawyer on the defense side. That means I spend most of my time representing clients after they have been convicted in a trial court. (Sometimes, appeals happen before the case in the trial court is over, but that’s a discussion for another time.) Because my clients have typically been to trial or entered a plea before they come to my office, they are usually the appellant—the one who brings the appeal. In most cases, the appellant is the one who lost in the trial court. The State or the Federal Government is usually the appellee—the one who responds to the appeal. I say “usually” because the State or Federal Government can take an appeal from some losses. But if the defendant wins at trial, there is no appeal. Neither the State nor the Federal Government can appeal from a judgment of acquittal. Anyway, the important thing to know is that the appellant has the burden of proving reversible error on appeal, much like the State or Federal Government had the burden of proving the defendant’s guilt at trial. An appellant who does not meet the burden of proving error on appeal cannot win.

It will also help to understand the differences between trial courts and appellate courts. Appellate courts exist to correct legal errors, not to judge facts. Appellate courts don’t decide whether someone is guilty or innocent. They only decide whether proceedings in the lower court, the trial court, followed the law. When an appellate court reverses a defendant’s conviction, it isn’t declaring the defendant innocent. It is saying that the process in the trial court whereby the defendant was convicted flouted one or more legal rules. When an appellate court affirms a defendant’s conviction, it isn’t declaring that the defendant is guilty. It is saying that the process in the trial court complied with the rules—regardless of whether the jury made the right or wrong decision.

“Appellate courts don’t decide whether someone is guilty or innocent. They only decide whether proceedings in the lower court, the trial court, followed the law.”

That distinction, between correcting errors and finding facts, frustrates many clients. Many clients want me to complain that a witness lied. So we talk about how those aren’t valid arguments for an appeal. Appellate courts don’t hear evidence; they only review the evidence that was presented in the trial court. And even then, their review of the evidence isn’t to determine whether the jury believed the wrong thing; only whether the rules were followed. Consequently, appeals aren’t about what actually happened in real life; they’re about what people said happened.

The other thing that frustrates clients is that appellate courts aren’t concerned with whether their convictions were fair or right. Juries famously have the power to nullify a prosecution. A jury can refuse to convict defendant, even if it finds the elements of the charged crime beyond a reasonable doubt. But an appellate court cannot nullify an appeal. It has no power to reverse a conviction unless a defendant has proven reversible error. Likewise, an appellate court has no power to affirm a conviction if an appellant has proven reversible error. An appellate court always must do what the law compels it do—regardless of whether the judges would like the result to be different.

Over the next few weeks, I’m going to discuss what it takes to prove reversible error. I’ll focus in these posts on Georgia and Federal law. The law in other states may be different. Also, please know that these are general points only. Whether any case presents reversible error depends on the facts of that case. My purpose in these posts is to demystify what an appellate lawyer does. Nothing I write here should be taken as legal advice. With those caveats out of the way, I hope you find this material interesting and informative.