In
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and interpreting law. Although appellate courts have existed for thousands of years,
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.
History
Appellate courts and other systems of error correction have existed for many millennia. During the first dynasty of Babylon,
Hammurabi
Hammurabi (Akkadian: ; ) was the sixth Amorite king of the Old Babylonian Empire, reigning from to BC. He was preceded by his father, Sin-Muballit, who abdicated due to failing health. During his reign, he conquered Elam and the city-states ...
and his governors served as the highest appellate courts of the land.
Ancient Roman law recognized the right to appeal in the
Valerian and Porcian laws
The Valerian and Porcian laws were Roman laws passed between 509 BC and 184 BC. They exempted Roman citizens from degrading and shameful forms of punishment, such as whipping, scourging, or crucifixion. They also established certain rights for Ro ...
since 509 BC. Later it employed a complex hierarchy of appellate courts, where some appeals would be heard by the
emperor
An emperor (from la, imperator, via fro, empereor) is a monarch, and usually the sovereignty, sovereign ruler of an empire or another type of imperial realm. Empress, the female equivalent, may indicate an emperor's wife (empress consort), ...
. Additionally, appellate courts have existed in Japan since at least the
Kamakura Shogunate
The was the feudal military government of Japan during the Kamakura period from 1185 to 1333. Nussbaum, Louis-Frédéric. (2005)"''Kamakura-jidai''"in ''Japan Encyclopedia'', p. 459.
The Kamakura shogunate was established by Minamoto no Y ...
(1185–1333 CE). During this time, the Shogunate established ''
hikitsuke The Hikitsuke (引付 lit. enquiry) or Hikitsuke-kata (引付方) (High Court) was one of the judicial organs of the Kamakura and Muromachi shogunates of Japan.
The Hikitsuke was established by the fifth ''shikken'' Hōjō Tokiyori in 1249 to expe ...
'', a high appellate court to aid the state in adjudicating lawsuits.
Although some scholars argue that "the right to appeal is itself a substantive liberty interest", the notion of a right to appeal is a relatively recent advent in common law jurisdictions. In fact, commentators have observed that common law jurisdictions were particularly "slow to incorporate a right to appeal into either its civil or criminal jurisprudence".
The idea of an appeal from court to court (as distinguished from court directly to the Crown) was unheard of in early English courts.
English common law courts eventually developed the writs of error and
certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
as routes to appellate relief, but both types of writs were severely limited in comparison to modern appeals in terms of availability, scope of review, and remedies afforded.
For example, writs of error were originally not available as a matter of right and were issued only upon the recommendation of the
Attorney General (which was initially discretionary but by modern times was regularly granted).
Certiorari was originally available only for
summary offences; in the early 19th century, certiorari became available for
indictable offences, but only to obtain relief before judgment.
Due to widespread dissatisfaction with writs (resulting in the introduction of at least 28 separate bills in Parliament), England switched over to appeals in civil cases in 1873, and in criminal cases in 1907.
The United States first created a system of federal appellate courts in 1789, but a federal right to appeal did not exist in the United States until 1889, when Congress passed the Judiciary Act to permit appeals in capital cases. Two years later, the right to appeals was extended to other criminal cases, and the
United States Courts of Appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals f ...
were established to review decisions from
district courts. Some states, such as
Minnesota
Minnesota () is a state in the upper midwestern region of the United States. It is the 12th largest U.S. state in area and the 22nd most populous, with over 5.75 million residents. Minnesota is home to western prairies, now given over to ...
, still do not formally recognize a right to criminal appeals. The U.S. Supreme Court has repeatedly ruled that there is no federal constitutional right to an appeal.
Appellate procedure
Although some courts permit appeals at preliminary stages of
litigation, most litigants appeal final orders and judgments from lower courts. A fundamental premise of many legal systems is that appellate courts review questions of law ''
de novo'', but appellate courts do not conduct independent fact-finding. Instead,
appellate courts
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
will generally defer to the record established by the
trial court
A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mos ...
, unless some error occurred during the fact-finding process. Many
jurisdictions provide a
statutory
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
or
constitutional right
A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
for litigants to appeal adverse decisions. However, most jurisdictions also recognize that this right may be
waived
A waiver is the voluntary relinquishment or surrender of some known right or privilege.
Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United St ...
. In the United States, for example, litigants may waive the right to appeal, as long as the waiver is "considered and intelligent".
The appellate process usually begins when an appellate court grants a party's
petition for review
In some jurisdictions, a petition for review is a formal request for an appellate tribunal to review the decision of a lower court or administrative body. If a jurisdiction utilizes petitions for review, then parties seeking appellate review of th ...
or
petition for certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
. Unlike trials, which many
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions typically perform with a
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
, appeals are generally presented to a
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
, or a panel of judges. Before hearing oral
argument
An argument is a statement or group of statements called premises intended to determine the degree of truth or acceptability of another statement called conclusion. Arguments can be studied from three main perspectives: the logical, the dialectic ...
, parties will generally submit
legal brief
A brief (Old French from Latin "''brevis''", short) is a written legal document used in various legal adversarial systems that is presented to a court arguing why one party to a particular case should prevail.
In England and Wales (and other Comm ...
s in which the parties present their arguments at length in writing. Appellate courts may also grant permission for an ''amicus curiae'' to submit a brief in support of a particular party or position. After submitting briefs, parties often have the opportunity to present an
oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also a ...
to a
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
or panel of judges. During oral arguments, judges often ask questions to
attorneys to challenge their arguments or to advance their own legal theories. After deliberating in chambers, appellate courts issue formal written opinions that resolve the
legal issues
List of lists of issues and controversies with the law
* Legal issues in airsoft
* Legal issues with fan fiction
* Burger King legal issues
* Legal issues and controversies surrounding Netflix
* Legality of cannabis
* Legal issues surrounding ...
presented for review.
Appellate courts
![Supreme Court of Victoria (5064240836)](https://upload.wikimedia.org/wikipedia/commons/a/aa/Supreme_Court_of_Victoria_%285064240836%29.jpg)
When considering cases on appeal, appellate courts generally affirm, reverse, or
vacate
A vacated judgment (also known as vacatur relief) makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. ...
the decision of a lower court. Some courts maintain a dual function, where they consider both appeals as well as matters of "first instance". For example, the
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
primarily hears cases on appeal but retains original jurisdiction over a limited range of cases. Some jurisdictions maintain a system of intermediate appellate courts, which are subject to the review of higher appellate courts. The highest appellate court in a jurisdiction is sometimes referred to as a "court of last resort".
[Gregory L. Acquaviva and John D. Castiglione, ''Judicial Diversity on State Supreme Courts'', 39 ''Seton Hall L. Rev.'' 1203, 1205 (2009).]
See also
*
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kin ...
*
List of legal topics
:'' The following outline is provided as an overview of and topical guide to law:''
Law ('' article link'') is the set of rules and principles (laws) by which a society is governed, through enforcement by governmental authorities. Law is also t ...
*
Judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompat ...
*
Appellate procedure in the United States
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
*
Scope of review The scope of review refers generally to the right to have an issue raised on appeal. It entails whether an issue was preserved by or available to an appellant on appeal. Scope of review is to the appellate court what the burden of proof is to the ...
*
Criminal appeal
An "appeal" was a procedure in English law to bring about a prosecution by a private party of an individual accused of a heinous crime.
Generally
" n appealis derived from the French, ‘appeller ’...which signifies to call upon, summon or chall ...
Notes
References
{{Authority control
Appellate review
Judiciaries
Lawsuits
Legal procedure