NACDL President Chris Adams' letter to the New York state legislature regarding proposals to truly implement review of excessive sentences, suppression rulings, and streamlining the assignment of counsel in appeals as outlined in A5687/S1280, A5688/S1281, and A5689/S1279, respectively (2021).

Letter to the Judicial Conference Committee on Practice & Procedure regarding proposed rule changes to the Federal Rules of Appellate Procedure.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to procedures in the Foreign Intelligence Surveillance Court.

Template SCA Privilege Motion, by Rebecca Wexler 

"It is quite true that there is enough difficulty in appealing as it is; but if there is to be no appeal at all possible the system would be intolerable." -L.J. Bowen

Appellate work is time-consuming, complex, and meaningful both for our clients and for creating precedent. Find helpful resources on appeals here.

What should a defense attorney do when a client pleads guilty, signs an appeal waiver, and then wants to appeal after sentencing? Obey the client and file a notice of appeal.

A great deal of folk wisdom surrounds the characteristics of a successful appellate brief. It is said that shorter briefs and fewer issues lead to greater appellate success. One of the “gurus” of legal writing recommended that issue statements not exceed 75 words. Some claim that simple, short arguments are more effective than longer ones. Many attorneys believe that an appellant who files a reply brief will be more successful than an appellant who does not. Several hypotheses arising from all this advice have been tested. The results call into question most of the folk wisdom.

President Lisa Wayne's written statement to the U.S. Sentencing Commission regarding sentencing practices since the U.S. v. Booker decision.

When the United States Loses in a Criminal Case: The Appeal Process.

A Champion article on the role of cognitive bias and its influence on forensic evidence, and what a defense attorney should consider in the interpretation of evidence. 

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari).

Argument: It is emphatically the province and duty of the judicial branch to say what the law is, not what the law was. But in the Eleventh Circuit, petitioner and scores of other defendants like him have their cases decided on the basis of law otherwise recognized as repudiated by intervening precedent from this Court. Alone among the circuit courts, the Eleventh Circuit requires direct instruction from the Supreme Court to revisit its prior precedent; without it, rationale widely considered clearly erroneous in light of subsequent Supreme Court case law is still applied to defeat defendants’ appeals. Because the Eleventh Circuit’s internal rules require Supreme Court precedent to be “directly on point” to allow reconsideration of its past case law, it takes a narrower view of Supreme Court rationale than does this Court. Where, as in this case, a court acknowledges that the Supreme Court’s intervening rationale is “at odds with” its binding precedent and yet forecloses argument on the issue, a defendant’s due process right to a meaningful appeal is violated. Review is warranted because the Eleventh Circuit's practice is impermissible and inconsistent with all other circuits. The problem is important, recurring, and squarely presented. For this reason, and those in the petition, the Court should grant certiorari.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioner.

Argument:  Federal Rule of Criminal Procedure 52(b), which provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” permits plainness to be measured at the time of appeal when the law was settled at the time of trial. Johnson v. United States, 520 U.S. 461 (1997). Nothing in the text of the rule, nor does any policy justify, varying from the Johnson “time of appeal” rule when the law was unsettled at the time of the trial (a question that was left open in Johnson). The “time of appeal” rule serves Rule 52(b)’s policy of allowing obvious injustices to be corrected on appeal; serves the goal of treating similarly situated defendants equally; and avoids wasteful appellate litigation over whether particular issues were “settled” or “unsettled” at the time of trial.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of the petition for certiorari and urging reversal.

Argument: “Harmless error” review must assess the effect of the error on the verdict, upon review of the entire record, and with the burden of proving harmlessness on the government ; the appellate court must assess the strength of the evidence with due consideration of the defendant’s Sixth Amendment jury trial right and the jury’s role as the factfinder.

Numerous courts have held that a court of appeals may not order an increase in a criminal defendant’s sentence in the absence of an appeal or cross-appeal by the Government. The Eighth and Tenth Circuits, however, have held that courts of appeals may sua sponte order increases in a defendant’s sentence when the district court has failed to impose a statutory mandatory minimum sentence, even if the Government has not appealed or cross-appealed the sentence.

Appellate Advocacy Part III: Ethical Issues