Recently, former President Donald Trump has appealed pretrial rulings denying him immunity from criminal prosecution and denying his claim of double jeopardy based on his impeachment proceeding. See United States v. Trump, No. 23-3228, in the United States Court of Appeals for the District of Columbia Circuit (2023). Because I am a federal criminal defense lawyer, some of my lawyer friends, clients, and families of clients have asked me why former President Trump can appeal these rulings and, in general, when federal criminal defendants can appeal a trial judge’s rulings before trial. I will answer those questions in this article.
THE GENERAL RULE: YOU CAN ONLY APPEAL WHEN THE CASE IS OVER IN THE TRIAL COURT.
As a matter of policy, we do not want parties in criminal (or civil, for that matter) cases to be able to take an immediate appeal of every ruling that a trial judge makes. Appeals take a long time—sometimes a year or more. So, if we allowed immediate appeals of every pretrial ruling, cases could bounce up and down between the trial court and the appeals court for years. In addition, many cases that could be resolved by a plea agreement for a guilty plea, which would avoid the need for appeals, could be bogged down with multiple appeals. Allowing immediate appeals of every pretrial ruling would make the system extremely inefficient and bogged down. For this reason, the general rule is that appeals can only be taken when the case is finished in the trial court—that is, when the trial court makes a “final decision.” In a criminal case, that generally means that the defendant is either acquitted or is convicted and sentenced.
In order to promote this policy, Congress passed a statute that enacts it into law: 28 U.S.C. § 1291. It provides: “The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States….” Id. (emphasis added).
EXCEPTIONS TO THE GENERAL RULE.
There are several exceptions to the general rule that you cannot appeal until the case is over in the trial court. In 1949, the United States Supreme Court held that certain rulings by trial courts are, effectively, “final” decisions, even though the case is not over in the trial court. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). In Cohen, the Supreme Court described the type of order that is, effectively, “final”:
The ruling must conclusively determine the disputed question;
The disputed question is important and entirely separable from the merits of the case; and
The ruling is effectively unappealable after a final judgment in the case.
See id. at 546-47. This became known as the “collateral order doctrine.”
In federal criminal cases, rulings that are recognized as falling within the collateral order doctrine include claims that a defendant is immune from criminal liability and claims that a prosecution is barred by double jeopardy. The denial of a claim of immunity “is an immediately appealable collateral order.” Wuterich v. Murtha, 562 F.3d 375, 381–82 (D.C. Cir. 2009) (immunity); see Abney v. United States, 431 U.S. 651, 659 (1977) (double jeopardy). Regarding immunity from criminal liability, this is considered appealable because a person entitled to immunity from prosecution is denied that immunity if the person is required to stand trial. The same logic applies to double jeopardy. That is, a person whose prosecution is barred by double jeopardy loses that protection if the person is required to stand trial a second time.
An interesting type of pretrial appeal concerns a federal trial court’s denial of a motion to suppress evidence that law enforcement has allegedly obtained illegally. This might happen, for example, if the police search a person’s home without a search warrant and find illegal drugs. If the trial judge rules that the police needed a search warrant, the judge may make a ruling “suppressing” the drugs that the police found. This means that the drugs cannot be used as evidence in the defendant’s trial. If the Government cannot prove the defendant’s guilt without proving that the police found the drugs, the Government might have to dismiss the case.
As far back as 1962, the Supreme Court held that a defendant cannot appeal a ruling denying a motion to suppress until after the case is over in the trial court. See Di Bella v. United States, 369 U.S. 121, 123-24 (1962). In other words, if the trial judge rules that law enforcement obtained the evidence legally and that it can be used in the defendant’s trial, the defendant can only appeal that ruling, if at all, after the defendant has been convicted and sentenced.
On the other hand, Congress has specifically provided, by statute, that the Government can appeal a ruling granting a motion to suppress evidence if the evidence is important to the Government’s case. As set forth in 18 U.S.C. § 3731:
An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
The reason for this statute is that, without the possibility of an immediate appeal, the Government might have to dismiss the case, which would end the case and prevent an appeal. Therefore, Congress provided a means for the Government to appeal rulings suppressing evidence without having to dismiss the case.
I recently had this happen. I won a motion to suppress statements made by the defendant who had not had been given his Miranda rights, and the Government immediately appealed because they did not think they could win the case without those statements. See United States v. Coulter, No. 3:19-CR-00068, in the United States District Court for the Northern District of Texas (October 2, 2020) (United States’ Notice of Appeal).
It is important to note that a defendant who loses a motion to suppress evidence can, with the agreement of the judge and the Government, plead guilty to the offense and reserve the right to appeal the ruling on the motion to suppress. See Fed. R. Crim. P. 11(a)(2). If the defendant wins the appeal on the motion to suppress, the defendant can then withdraw the guilty plea and proceed to trial. See id.
Another exception to the general rule that you cannot appeal rulings before the end of the case in the trial court concerns pretrial detention orders. A detention order is a ruling that a defendant will be held in custody while the case proceeds toward trial. A United States Magistrate Judge will normally rule on this issue at a “detention hearing” early in the case.
By statute, if a Magistrate Judge orders a defendant to be held in custody, the defendant can appeal the ruling to a United States District Judge. See 18 U.S.C. § 3145(b). The Government can do the same if the Magistrate Judge rules that the defendant should not be held in custody. See 18 U.S.C. § 3145(a). Either the defendant or the Government can then appeal a ruling from a United States District Judge to the United States Court of Appeals. See 18 U.S.C. § 3145(c). The reason for these provisions is that a person’s detention, or lack of detention, cannot be effectively reviewed after the case is over. If the person should not be detained, and they are, an appeal after the case is over cannot undo the detention during the case. Likewise, f the person should be detained, and they are not, an appeal after the case is over cannot cause the person to be detained.
WHY WAS FORMER PRESIDENT TRUMP ALLOWED TO APPEAL WHEN HE DID?
Former President Trump was allowed to appeal two issues before the end of his criminal case in the trial court: (1) Whether Presidents are immune from criminal prosecution for what they do during their presidency; and (2) Whether President Trump’s impeachment trial means that he cannot be criminally prosecuted under the Double Jeopardy clause of the Fifth Amendment of the United States Constitution.
Both of these issues fit within the collateral order doctrine discussed above, so he can appeal them before the case is over in the trial court. The fact that he can appeal these issues has nothing to do with whether he might win them on appeal. Frankly, I think both of former President Trump’s arguments border on being completely frivolous. I do not think any serious lawyer believes he can or should win either of them. They are pure delay tactics that he hopes will drag out the case until after the election, which he hopes he will win, so that he can either try to pardon himself (again, frivolous in my view), or stop the prosecution by the Justice Department.
AS A FEDERAL CRIMINAL DEFENDANT, WHAT ISSUES CAN YOU APPEAL RIGHT AWAY?
If you or a loved one is charged in a federal criminal case, your ability to appeal pretrial rulings before the case is over in the trial court is very limited. You can immediately appeal if the trial court denies a claim of immunity from prosecution, denies a motion to dismiss based on double jeopardy, or orders you or your loved one detained while the case proceeds. There may be other situations in which you can immediately appeal, but these are the most likely ones.
If you or a loved one cannot immediately appeal a ruling, it may be possible to appeal the ruling after conviction and sentence. This will depend on a number of factors, including whether the was convicted in a trial or whether the defendant pleaded guilty and reserved the right to appeal.
Federal criminal cases are complicated and specialized. An effective defense to federal criminal charges requires the experience and skill of a lawyer who knows federal criminal law and procedure. If you or a loved one is charged with a federal crime, you should immediately contact a federal criminal defense lawyer with the experience, skill, knowledge, and track record who can get the best possible result in the case.
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