Wende 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 to obtain.

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 the law.)

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. Include a 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 federal constitution.

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