A. ISSUE SPOTTING, EVALUATION AND PRESENTATION
An appellate advocate's most important skill is the ability
to spot viable claims of error in a cold record. No matter
how great the attorney is at research, writing, or oral advocacy,
there is simply no way to make up for missing a winning issue.
Some issues are apparent on the face of the record because
trial counsel expressly raised them by motion, by objection,
by request for instruction, etc. If spotting issues involved
nothing more than noting when defense counsel objected on
the record, issue spotting would be easy. Appellate practice
has evolved beyond that, however.
Many issues are like truffles: they are subterranean and must
be sniffed out by a trained snout. These are the ones not
expressly flagged in the record as issues; instead they exist
as issues only if appellate counsel has the nose for them.
Examples of such issues are a trial court's failure to give
a sua sponte instruction, or its failure to initiate competency
proceedings sua sponte, etc. These are obviously the more
difficult issues to spot.
How do we spot the hidden issues in a record? Most of us do
it instinctively. It is nevertheless possible to describe
what our mental processes must be when we uncover an issue.
When we read a record, we are in search of reversible error.
We have acquired, through legal education and experience,
an idea of how the legal system is supposed to work; when
we review an appellate record we are checking for ways in
which the proceedings differ from that idea.
By the time you graduated from law school, you probably had
the "big picture" of how criminal cases are supposed to proceed:
the accused is given fair notice of his alleged misconduct
and is afforded the effective assistance of counsel (as well
as other constitutional and statutory protections) in an adversary
proceeding in which the People are represented by a dedicated
but fair-minded advocate and the case is adjudicated before
a neutral magistrate. Although beautifully simple in general
outline, the details of this picture become exceedingly complex.
A competent criminal lawyer needs to know more than the general
outline of our adversary system: he or she needs to know the
minutiae as well. In short, to develop a facility for spotting
issues, you must have a sufficient understanding of how the
system is supposed to work if operating according to the law.
Spotting issues is a preliminary step toward writing a brief.
It is emphatically not an appellate lawyer's responsibility
to raise every non-frivolous issue or even every viable issue.
Instead, deciding which issues are worth briefing and which
are not is a matter of professional judgment.
You do not have a duty to raise every non-frivolous issue
requested by the client or suggested by trial counsel if there
are tactical decisions weighing against it. (See Jones v.
Barnes (1983) 463 U.S. 745, 751-754.) On the other hand, you
have a duty to advocate for changes in the law if an argument
can be made to support change. (People v. Feggans (1967) 67
Cal.2d 444, 447.)
In assessing an issue, you must be aware of one of the facts
of life on appeal: the "harmless error" doctrine will be used
to deem many errors harmless. Thus, in assessing the value
of any issue, you need to consider whether you can avoid the
doctrine by arguing the error is reversible per se and, if
not, how good a showing of prejudice you can make, to satisfy
the applicable test of prejudice. An article which provides
analysis on how to show prejudicial error is available on
our website, at sdap.org.
Once you have decided which issues are worth briefing, you
should then decide which issues are your lead issues and which
are of lesser importance. The order in which you present your
issues is also affected by your view of their respective merits.
Sometimes logic or chronology will dictate the order in which
issues must be presented. More often, however, the choice
of order is one for you to decide: the general rule is to
open the argument section of your brief with your strongest
issue. An exception to this rule is that a sentencing issue
should not be raised first if any issue exists which could
lead to reversal of a count of conviction.
The proper presentation of an issue typically requires you
to do the following: (1) identify the claimed error (e.g.,
the Superior Court erred by failing to give a particular instruction);
(2) if the law requires an objection to render the issue cognizable
on appeal, specify that place in the record where the issue
was raised; (3) argue the error (the court's failure was error
because . . . ); and (4) argue prejudice (the court's error
was prejudicial and requires reversal because . . . ).
All too often we see briefs that establish the existence of
error and then state in a single sentence that the error was
prejudicial. This cavalier approach to prejudice is ill-conceived.
As noted above, you must pay attention to prejudice, showing
precisely how the error impacted the prosecution and defense.
A careful review of opening statement, closing argument, instructions,
communications from jurors, and deliberations is necessary.
You need to convince the Court of Appeal that the identified
error affected the outcome.
B. OPENING BRIEF
The opening brief is the time to put your best foot forward.
You must present the best case possible for relief for your
client by showing that there was error; that the error was
not waived or forfeited and that the error was prejudicial.
The opening brief may be the first battle in a long war on
the judgment. The client may ultimately want to attack the
conviction by way of federal habeas corpus. It is important
that the issues are framed in a way to preserve and prepare
for that eventuality.
1. Captions and Format.
When preparing your brief, you should carefully review California
Rules of Court, rules 8.40, 8.44, 8.200, 8.204 and 8.360 to make sure that your
brief complies with basic requirements. Use plain 8-1/2 x
11 paper without left margin numbering.
The cover should set forth the name of the court, the case
title, the case number, and set forth the nature of the brief,
i.e., Appellant's Opening Brief. The cover should bear the
name of the Superior Court appealed from, the lower court
case number and the judges who made the rulings appealed from.
The lower right hand corner should indicate "The Sixth District
Appellate Program, in association with" your name, State Bar
number, address and phone number, as counsel for appellant.
In cases in which SDAP has declared a conflict, SDAP’s name
should not appear on the cover as counsel.
The form and length of the brief should conform to rules 8..204
and 8.360. Each argument should have its own heading. Subheadings
are often helpful in the organization of a complex argument.
Statement of any matter in the record must be supported by
appropriate reference to the record. Each brief must start
with a topical index of its contents, and a table of authorities,
separately listing all cases, statutes, court rules, constitutional
provisions and other authorities.
2. Jurisdictional Statement.
As the first item in the body of the brief, a Statement of
Appealability should appear demonstrating that the appeal
is being taken from a final judgment, or explaining why the
order or non-final judgment is appealable. (Cal. Rules of
Ct., rule 8.204(a)(2)(B).)
3. Statement of the Case.
The procedural history of the case should be concise and focus
on those portions of the proceedings most relevant to the
appeal. It should generally indicate the charges, the types
of hearings conducted, motions or notable events at trial,
rulings if they are being challenged on appeal, the counts
of conviction, and the judgment. The manner in which the judgment
was calculated should be noted (i.e. 8 years on count one
and a subordinate term of 16 months on count two). Every assertion
of procedural history in the Statement of the Case should
be supported by a citation to the record.
4. Statement of Facts.
The Statement of Facts should be in narrative form. Generally,
a chronological story works best. The statement should focus
on those facts which are relevant to the issues on appeal.
Witness-by-witness summaries are difficult to follow and should
be avoided. If facts are relevant to a legal issue and not
guilt or innocence, then they should be separated by a descriptive
heading (e.g. facts relevant to a suppression motion). Every
assertion of fact in the Statement of Facts should be supported
by a citation to the record.
In most cases, subheadings should be used to separate the
People’s case from the defense evidence. If the defense did
not call any witnesses, a brief summary of the defense closing
argument should be provided.
Make sure each argument is analytically complete. Note where
the specific objection was made on the record. Do not just
argue that error occurred, but demonstrate why such error
requires reversal or modification of the judgment. In cases
with multiple counts of conviction, analyze whether the prejudicial
effect of the error applies to all or just some counts. Cite
the appropriate standard of prejudice and argue that standard
with respect to the particular facts of the case. Specify
the remedy you are seeking (e.g., reversal with directions
to dismiss, reduction to a lesser included offense, remand
6. Proof of Service.
California Rules of Court, rule 8.360(d), requires that briefs be
served on the district attorney, the Attorney General, and
the Clerk of the Superior Court. Unless the defendant has
expressly requested otherwise in writing, a copy must be sent
to the defendant. This sometimes presents a problem. Consult
with SDAP about what to do if you have lost contact with your
client, the client has been deported, or you believe the client
may have absconded.
Also, particularly in cases involving sexual offenses, you
should make sure that your client, if in custody, wants to
receive the brief. If not, you should obtain a written request
by the client that briefs not be sent. Your statement that
you have such a written request is adequate proof that you
are in compliance with Rule 8.360(d) regarding sending the brief.
The rules do not require service on trial counsel. It is a
professional courtesy which is encouraged by SDAP.
7. Electronic Delivery
Counsel must electronically file all motions, briefs, and petitions in the court of appeal via a private vendor called TrueFiling. SDAP will accept electronic service at email@example.com in PDF format. The Attorney General must be electronically served all documents in PDF format at SFAGDocketing@doj.ca.gov. The subject header should include the case name, case number and the title of the document. In dependency cases, county counsel must be served a hard copy in the mail. A hard copy should be mailed to the client, the district attorney, the superior court, and any other parties, if they are requires by rule.
The proof of service needs to be modified. (See Cal. Rules of Court, Rule 2.251(g).) Counsel is responsible for maintaining an unaltered copy of the documents that are electronically filed, delievered, or served. (Code Civ. Proc. 1010.6; Cal. Rules of Court, Rules 2.250 et seq.) The standing orders are below. Additional information and the methodology for electronic filing and electronic delivery will be found on the court’s website at http://www.courts.ca.gov/6dca.htm.