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Do I Have to Testify When I Appeal a Delaware Criminal Conviction?


It is disappointing to learn that the judge or jury has found you guilty on criminal charges, especially when there were mistakes made by the court that affected the outcome of your case. The US criminal justice system does allow you to appeal the guilty verdict, a process by which appellate judges review the trial proceedings and evaluate alleged errors. Under Delaware Supreme Court rules on appeals, you must initiate the legal process within 30 days after your sentence is imposed. In some cases, this could be some time after the conviction when the court sets a separate sentencing hearing.

Criminal appeals in Delaware are very different from the trial process, so you surely want to know more about how the proceedings work. A key question from many defendants is whether they will have to testify in an appeal. The answer is NO. You cannot be forced to incriminate yourself under the Fifth Amendment, and this protection still applies with the appellate process. However, no one else will be testifying either. Trust a Wilmington criminal appeals attorney to explain details, but an overview is useful.

What Appeals Courts Review: The appellate process exists to analyze what transpired at trial and correct mistakes. It is not intended as a way to re-try the case, so no new evidence or witness testimony is allowed. The judges review the trial court record, which includes everything that happened during the process. The record consists of all audio and video, if any, as well as the court reporter’s transcription of all statements in court. When you file your appeal, you will draw attention to the specific areas within the trial record where you allege errors.

 Appellate Court Proceedings: You must file your notice of appeal within 30 days after sentencing, but your lawyer will also prepare a brief or memorandum. In addition to areas of the trial record that point out mistakes, your brief should also include legal arguments regarding how the trial judge erred.

Either the US or Delaware government will have a chance to respond, depending on whether your case involves federal or state charges. Appeals judges may make a decision based upon the briefs of the appellant and appellee, but they may also request that the parties attend a hearing.

 Possible Outcomes with Criminal Appeals: A favorable result in an appellate case is having the judges side with you, but do not expect that your conviction will be automatically overturned. Instead, the court will usually resolve errors through:

  • An order directing the trial judge to follow instructions on re-trying certain parts of case;
  • Instructions for a new trial;
  • Reversal of a specific finding by the trial court judge; or,
  • Additional proceedings before the trial court.

A Delaware Criminal Appeals Lawyer Will Guide You Through the Process

To learn more about what happens in a Delaware criminal appeal, please contact Attorney Michael W. Modica. You can set up a consultation at our offices in Wilmington, DE by calling 302.600.1262 or visiting us online.



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