About Kim Hart
Trial Consultant

Over the past 14 years, I have reviewed hundreds of appeals cases and, in the process, have been able to digest the various approaches and legal arguments that have been utilized by hundreds of different lawyers. 

It is my opinion that most appeals overlook viable issues and have a tendency to raise issues that have virtually no chance of being successful. For example, “manifest weight of the evidence” and “sufficiency of the evidence” arguments have virtually no chance of overturning the conviction. 

If those are the main issues in an appeal, the chances of winning are slim to none. If those issues are raised in a collateral role of trying to help frame the mind-set of the appellate judges for a viable issue, then, there may be a place in your appeal for them. Remember, an alleged victim’s testimony if believed by the trier of fact is sufficient to convict someone (regardless of the alleged victim’s pre-trial statements and trial testimony are contradictory).

Many appellate attorneys who are doing a direct appeal will often tell you that they are only interested in reading the transcripts of the trial. Many of them will not want to obtain and review the original attorney file since it is not ‘part of the record’. Prosecutors sometimes fail to provide the defendant with all favorable or exculpatory evidence that they have. The practice of an appellate attorney not reviewing the original attorney file is plainly wrong. Brady material (favorable and/or exculpatory evidence) can many times be gleaned from materials that were in the original case file. 

For example, the original trial attorney may have been provided statements or reports that could indicate that prior interviews were conducted with an alleged victim or important witness. The prosecution did not provide the prior interviews because he/she did not feel or believe that the prior interviews were “favorable” to the defendant. Yet, those prior interviews could have been the evidence to show changes in the alleged victim’s story, contradictions with a witness’ trial testimony, and so on. 

Since the majority of sexual abuse convictions hinge on the credibility of the accuser, any evidence that discredits the accuser’s credibility could have impacted the verdict. While many appellate attorneys would argue that these are “post-conviction issues”, we would submit that they could provide support, for example, of ineffective assistance of counsel on the direct appeal.