ALL RISE!
Those words are a part of our common vernacular, announcing the judge entering/leaving a courtroom. It symbolizes respect for the authority of the court.
Less known is a protocol you don’t see on TV, but which is common in courtrooms throughout the nation. Everyone, including the judge, rises as the jury enters/leaves the courtroom — symbolizing that even judges are subordinate to the citizens who comprise the jury.
Judges and courts are tools of government, which in turn is a creation of a Constitution. The Colorado constitution exists only because the citizens of Colorado declared it so. It’s first words “We, the people of the State of Colorado” declare in whom authority over all aspects of the state government ultimately resides.
That authority is why only a jury of citizens, rather than a functionary of government, can decide if one among us has violated the societal norms, manifested as criminal laws, to which we have collectively agreed to abide. Judges don’t decide guilt — citizen jurors do — and their verdict is nearly sacrosanct.
A judge, the rules of procedure, and rules of evidence are merely the mechanism the citizens, through the constitution, have created to decide a verdict. They have all evolved over a millennium to assure likelihood of the validity of verdicts.
Trials are comprised of two legal components — “questions of fact” and “questions of law”. The jury decides the former; the judge is the arbiter of the latter. Neither can encroach on the other’s domain. Appeal court judges have wide authority to overrule a trial judge on legal rulings, but have very limited authority to substitute their opinion of the facts for that of the jury.
An acquittal is final. No trial or appellate judge can override that decision by “the people” speaking through the citizens chosen from among us to serve as the jury.
An appeal from a guilty verdict can be taken. But (except in very limited, rare circumstances) it’s not the finding of guilt — the question of fact — by the jury being appealed, it’s the questions of law decided by the trial judge.
The only basis on which an appellate court can substitute it’s determination of guilt, for that of the jury, is if “there was no evidence from which the jury could have reached a guilty verdict”. If there was any evidence from which the jury could decide guilt, then that determination — the “question of fact” — is valid.
So usually an appeal from a guilty verdict is a claim that the process was flawed. It’s a claim that the trial judge made an erroneous ruling on a “question of law”.
An erroneous ruling does not include one that falls within the scope of the trial judge’s “discretion”. If it does, then that discretion will only be deemed “erroneous” if there was no basis whatsoever for the trial judge’s ruling – a very rare occurrence for experienced trial judges.
For a successful appeal, not only must a trial judge’s ruling be erroneous, but it must have been significant enough to cast doubt on the validity of the verdict. “Harmless errors”, as they are referred to, will not result in a trial result being “overturned on appeal”. In recognition that nothing created by humans can be flawless, including our criminal justice system, the United States Supreme Court has said a defendant “is entitled to a fair trial, not a perfect one.”
So the only way a defendant found guilty by a jury can have that verdict overturned is if an appellate court disagrees with the trial judge on a significant ruling of law. Overturning the verdict because of an erroneous legal ruling does NOT mean the appellate court found the defendant innocent, only that there must be another trial where a new jury decides a new verdict. (As a practical matter, the prosecution has an advantage in a retrial because they know what the defense strategy will be.)
Only if the appellate court determines there was no evidence presented at trial from which the jury could have reached that verdict, will an appeal result in defendant being discharged from having to stand trial again. Such discharges are extremely rare, because in most such cases the trial judge will have dismissed the case before even allowing the jury to deliberate.
Nearly every guilty verdict is appealed, even those in which there was no error by the trial judge. Those are called ‘Ander’s appeals” – named for Anders v California, a US Supreme Court case that held a defendant is entitled to an initial appeal of his conviction, even where there is no legitimate grounds for one.
So the next time you hear an attorney boldly announcing to the media, after a guilty verdict, that he “will appeal”… odds are he’s really saying, “I just got my ass kicked in court!… and this is my next move…”
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.