- NO ISSUE BRIEFS
In People v. Wende (1979) 25 Cal.3d 436, the California Supreme
Court specified the nature of the brief which is to be filed
when defense counsel is unable to find a non-frivolous issue
to argue. As approved by the U.S. Supreme Court, counsel’s
duty is to file a brief:
“that summarizes the procedural and factual history of the
case, with citations to the record. He also attests that he
has reviewed the record, explained his evaluation of the case
to his client, provided the client with a copy of the brief,
and informed the client of his right to file a pro se supplemental
brief. He further requests that the court independently examine
the record for arguable issues . . . [C]ounsel following Wende
neither explicitly states that his review led him to conclude
that an appeal would be frivolous . . . nor requests leave
to withdraw. Instead, he is silent on the merits of the case
and expresses his availability to brief any issues on which
the court might desire briefing. [Citation.]” (Smith v. Robbins
(2000) 528 U.S. 259, 265.)
Deciding whether an issue is merely weak or wholly frivolous
is not an easy task. Nonetheless, the courts have provided
some guidance by which the merit of an issue is to be measured.
As one court has observed:
"an arguable issue on appeal consists of two elements. First,
the issue must be one which, in counsel's professional opinion,
is meritorious. That is not to say that the contention must
necessarily achieve success. Rather, it must have a reasonable
potential for success. Second, if successful, the issue must
be such that, if resolved favorably to the appellant, the
result will either be a reversal or a modification of the
judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
While reasonable lawyers will no doubt differ on the application
of the cited test in a particular case, the reality remains
that it is probably as precise a measure as we are likely
Before filing a Wende brief, appellate counsel should recall
that there is an ethical duty to zealously represent the client
and “resolve all doubts and ambiguous legal questions in favor
of his or her client.” (McCoy v. Court of Appeals of Wisconsin
(1988) 486 U.S. 429, 444.) Thus, if a good faith, albeit weak,
issue can be plausibly raised, a Wende brief is not appropriate.
This is especially true if it can be maintained that existing
law should be changed. (People v. Feggans, supra, 67 Cal.2d
444, 447; attorneys have a duty to advocate for changes in
If you believe that a Wende brief is appropriate, you must
first submit the record to SDAP for its independent review.
A Wende brief may not be filed unless a SDAP staff attorney
has authorized the filing of the brief.
Finally, with respect to the format of a Wende brief, SDAP
recommends, but does not require, the following approach.
Counsel should prepare a statement of the proceedings which
is detailed enough to alert the appellate court to any motions,
objections, evidentiary rulings or instructions which could
ordinarily give rise to an arguable issue. If you have identified,
researched and rejected as frivolous any specific issues,
list those issues along with any favorable applicable law.
Do not put in the unfavorable law which caused you to conclude
the issue is frivolous. Include with the list of these issues
the statement that you are requesting the court's independent
review of the record for identification of any arguable issue.
Do not describe the case as frivolous, do not assert you have
been unable to locate arguable issues, or request to withdraw.
That way, if the court requests briefing on an issue, you
are not disabled from advocating it.
In Smith v. Robbins (2000) 528 U.S. 259, the United States
Supreme Court ruled that providing a factual and procedural
summary and requesting that the court independently examine
the record for arguable issues is sufficient to satisfy the